Opinion
No. CV 99 0169983
February 13, 2001
MEMORANDUM OF DECISION
Gloria G. McClellan (claimant) filed a claim for unemployment compensation benefits against her former employer, Wizard of Westport (employer), which was in the business of renting costumes. The claimant had been employed for approximately three years. The employer contends that the claimant left her job voluntarily on or about October 31, 1997, and hence was ineligible for unemployment benefits.
An examiner for the named defendant, the administrator of the Unemployment Compensation Act (administrator), pursuant to General Statutes § 31-222 et seq., granted the claimant's application for unemployment compensation benefits on the basis that her employer had failed to pay the claimant the wages and overtime that she was due.
Pursuant to General Statutes §§ 31-241 and 31-242, the employer appealed the administrator's decision to the employment security appeals division, where it was referred to an appeals referee for a hearing de novo. The appeals referee scheduled a hearing but the employer did not appear. However, the referee granted the employer's motion to reopen and held a new hearing. The referee said that the issue presented was whether the claimant left suitable work voluntarily and without good cause attributable to the employer.
As a result of the new hearing, the referee rendered a decision dated July 14, 1998, land made the following factual findings: (1) on October 31, 1997, the last day of her employment, the claimant asked the employer for an extra check for overtime; (2) the employer went to her office to write out a check but by the time the employer returned, the claimant had departed and never returned to work; (3) there was no history of prior problems, dissatisfaction or confrontations with the employer regarding wages; and (4) the claimant was a salaried employee who was not entitled to overtime.
The appeals referee concluded that the claimant had left suitable work voluntarily and without good cause attributable to the employer. Accordingly, the administrator's decision granting unemployment compensation benefits was reversed.
The claimant appealed this decision to the employment security appeals division board of review (board) in accordance with General Statutes § 31-249, claiming that she had been fired and had not left her employment voluntarily. The board reviewed the record, including a tape recording of the hearing before the appeals referee. The board noted that j"the claimant quit without waiting to see if the paycheck remedied the situation." Accordingly, the board determined that the appeals referee was correct when he characterized the claimant's actions as a "voluntary leaving, " as contrasted with terminating a job because of good cause attributable to the employer.
The claimant then made a motion to "reopen" the decision on the ground that she had been deprived of the opportunity to cross examine the employer's bookkeeper. In a decision dated December 8, 1998, the board denied the motion to reopen.
The board noted that the bookkeeper had previously testified at a hearing held by the referee on April 22, 1998, which the claimant did not attend. At the second hearing on June 10, 1998, the bookkeeper was not present. The referee stated that he would keep the hearing open in order to receive the bookkeeper's testimony but then went ahead and rendered his decision. However, the referee had announced at the second hearing that the bookkeeper's testimony at the first hearing would be part of the record. The claimant did not protest this ruling at the second hearing and stated, according to the board, that "the bookkeeper's participation was not necessary because she was not a witness to the claimant's relevant conversations with the employer." Also, the bookkeeper's testimony did not contradict the claimant's testimony. The referee's decision, according to the board, "was based upon the testimony and admissions of the claimant" and, accordingly, her inability to cross examine the bookkeeper did not violate the claimant's rights.
The claimant, referred to hereafter as the plaintiff appeals to this court pursuant to General Statutes § 31-249b. The board filed a return of record, and a hearing was held before this court on October 31, 2000.
General Statutes § 31-249b provides, in pertinent part, that: "In any appeal, any finding of the referee or the board shall be subject to correction only to the extent provided by section 22-9 of the Connecticut Practice Book."
Practice Book § 22-9(a) provides, in pertinent part, that: "Such appeals are heard by the court upon the certified copy of the record filed by the board. The court does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses." Subsection (b) further provides that: "Corrections by the court of the board's findings will only be made upon the refusal to find a material fact which was an admitted or undisputed fact, upon the finding of a fact in language of doubtful meaning so that its real significance may not clearly appear, or upon the finding of a material fact without evidence."
"[T]he purpose of the unemployment compensation act is to provide income for the worker earning nothing because he is out of work through no fault or act of his own. . . ." (Citations omitted.) Cervantes v. Administrator, 177 Conn. 132, 136, 411 A.2d 921 (1979). "[T]he [unemployment compensation] act is remedial and, consequently, should be liberally construed in favor of its beneficiaries. . . . Indeed, the legislature underscored its intent by expressly mandating that the act shall be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualifaction in doubtful cases. General Statutes § 31-274 (c)." (Citations omitted; internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, 238 Conn. 273, 278, 679 A.2d 347 (1996).
On the other hand, the Supreme Court has held that a trial court has a limited role when reviewing an unemployment compensation appeal. "To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review. The court must not retry the facts nor hear evidence. . . . If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion." (Citations omitted.) United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385-86, 551 A.2d 724 (1988).
"As a general rule, `[t]he application of statutory criteria to determine a claimant's eligibility for unemployment compensation under General Statutes §§ 31-235 and 31-236 involves mixed questions of fact and law in which the expertise of the administrative agency is highly relevant.'" United Parcel Service, Inc. v. Administrator, supra, 209 Conn. 386. Moreover, the construction placed upon a statute or regulation by the agency responsible for its enforcement and administration is entitled to great deference. Griffin Hospital v. Commission on Hospitals Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S.Ct. 781, 93 L.Ed.2d 819 (1986).
Furthermore, in reviewing this appeal it was noted that Practice Book § 22-4 provides in pertinent part that if an appellant wants the board's findings to be corrected, he must, within two weeks after the record is filed with the court, "file with the board a motion for the correction of the finding" accompanied by either the entire transcript or portions thereof. In Calnan v. Administrator, 43 Conn. App. 779, 785, 686 A.2d 134 (1996), the court stated that filing a motion with the board for correction of the findings "is a necessary prerequisite to a challenge to the board's decision." Accord Chavez v. Administrator, 44 Conn. App. 105, 106-07, 686 A.2d 1014 (1997). The plaintiff in the present case did not file such a motion and therefore the board's factual findings and those conclusions which are based on the weight of the evidence and the credibility of witnesses cannot be challenged.
As to the merits of the appeal, the issue is whether "the decision of the board was logically and rationally supported by the evidence, and was not unreasonable, arbitrary, illegal or an abuse of the board's discretion." Calnan v. Administrator, supra, 43 Conn. App. 785.
General Statutes § 31-236(a)(2)(A), as amended by Public Act 99-123, effective October 1, 1999, provides in pertinent part that an individual is ineligible for benefits if"the individual has left suitable work voluntarily and without good cause attributable to the employer." See also section 31-236-17 of the Regulations of Connecticut. State Agencies. Section 31-236-18 of the Regulations of Connecticut State Agencies defines "voluntary leaving" as involving "the specific intentional act of terminating [one's] own employment."
Section 31-236-17 provides in pertinent part that an individual is ineligible for benefits if he or she leaves suitable employment voluntarily, as defined in section 31-236-18, and without good cause it attributable to the employer, as defined in section 31-236-19, including leaving work for "changes in conditions" created by the employer. Section CT Page 2474 31-236-19 defines "good cause attributable to the employer" and provides that the Administrator "must find that the reason relates to wages, hours or working conditions which comprise the employment that the individual voluntarily left."
In the present case, the board determined that the plaintiff left her job voluntarily, intentionally and without good cause attributable to the employer. "An individual leaves suitable work for cause within the meaning of the statute, when he leaves employment for reasons which would impel the ordinary reasonable person to leave and which provide the individual with no reasonable alternative but to terminate his employment. . . . As a matter of law, therefore, a claimant must show that his basis for leaving employment is objectively reasonable and that no reasonable alternative to termination exists." (Citations omitted; internal quotation marks omitted.) Acro Technology, Inc. v. Administrator, 25 Conn. App. 130, 135, 593 A.2d 154 (1991).
The conclusion of ineligibility for benefits is within the board's competence and should not be disturbed. "[T]he Superior Court does not retry the facts or hear evidence in appeals under our unemployment compensation legislation. Rather, it acts as an appellate court to review the record certified and filed by the board of review." Finkenstein v. Administrator, 192 Conn. 104, 112, 470 A.2d 1196 (1984). "[O]ur standard of review in administrative proceedings must allow for judicial scrutiny of claims such as constitutional error, jurisdictional error, or error in the construction of an agency's authorizing statute." Id., 113.
The court finds, on the basis of the certified record, that the board was presented with sufficient evidence to justify the conclusions it reached concerning the circumstances under which the plaintiff left her employment. Therefore, the defendant's motion (#101) for judgment dated February 10, 1999, is granted. The board of review's decision is affirmed, and judgment hereby enters dismissing the plaintiffs appeal.
So Ordered.
Dated at Stamford, Connecticut, this 13th day of February, 2001.
William B. Lewis, Judge