Opinion
CV165017666S
01-04-2017
Katrissa Pugh v. Administrator, Unemployment Compensation
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
This is a statutory appeal concerning unemployment compensation. The certified record filed with the court reveals the following: On March 8, 2016, the administrator ruled Katrissa Pugh (hereinafter " claimant" or " plaintiff") ineligible for unemployment benefits. The claimant appealed the administrator's decision to the appeals division. A hearing de novo was held before a referee on April 12, 2016. The plaintiff participated; her employer did not.
The referee found the claimant began working for the employer on June 15, 2015. At the time of separation, the claimant worked full-time for the employer as a customer service representative. On February 11, 2016, the employer discharged the claimant for absenteeism. Prior to January 9, 2016, the claimant's sister and her two children, ages three and eleven months, resided with the claimant. Prior to January 9, 2016, the claimant's sister disappeared. The claimant chose not to contact the police due to doing so would subject her sister to criminal charges. During her sister's absence, the claimant could not report to work due to lack of childcare for her sister's children The claimant could not afford childcare for her sister's children, nor could she enroll her sister's children in a daycare, because she was not their legal guardian. For twenty-four consecutive working days between January 9, 2016 and February 11, 2016, the claimant called out her absence from work. During the first week of February 2016, the claimant received a letter from the employer notifying her that if she did not return to work she would be terminated. After receiving the letter, on February 11, 2016, the claimant contacted the employer and spoke to a human resources representative. The claimant advised the human resources representative of her situation and her inability to report to work. The employer's representative provided the claimant with the option to quit or be discharged. The claimant chose to resign from her position in lieu of being discharged.
The referee affirmed the administrator's denial of benefits on the grounds that the plaintiff was discharged for wilful misconduct in the course of the employment because she chose to voluntarily leave her position in lieu of imminent discharge. As a result the claimant was disqualified from receiving unemployment compensation benefits pursuant to General Statutes § 31-236(a)(2)(B) which provides that an individual is ineligible for benefits if she was discharged or suspended for willful misconduct in the course of her employment. General Statutes § 31-236(a)(16) provides, " If the discharge resulted from an absence from work, 'willful misconduct' means an employee must be absent without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances for three separate instances within a twelve-month period."
The claimant timely appealed the denial of benefits to the Board of Review (hereinafter " board"). After reviewing the record, including a recording of the hearing, the board adopted the referee's findings of fact and affirmed the decision. The claimant filed a Petition for Review and Request for Written Argument which the board treated as a motion to open. The motion was denied.
The plaintiff then appealed to this court pursuant to General Statutes § 31-249b. A hearing was held on October 27, 2016. The plaintiff and counsel for the defendant appeared. The court has reviewed and considered the certified record and the parties' pleadings and arguments.
In an unemployment compensation appeal under General Statutes § 31-249b, the Superior Court does not undertake de novo review of the board's decision. " 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 . . . The court's ultimate duty is to decide only whether, in light of the evidence, the board of review has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion." (Internal quotation marks omitted.) Phillips v. Administrator, Unemployment Compensation Act, 157 Conn.App. 342, 350, 115 A.3d 1162 (2015). Section 22-9 of the Practice Book instructs that in the absence of a motion to correct, this court is not entitled to " 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 . . . there was any evidence to support in law the conclusions reached. [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses." Practice Book § 22-9.
The focus in this appeal is on the referee's findings and conclusions, as adopted by the board, that the plaintiff failed to report to work for twenty-four consecutive working days, due to lack of childcare for her sister's children, that the claimant chose not to take action to obtain temporary guardianship of her sister's children due to fear of contacting the police regarding her sister's absence and that the lack of childcare was not out of the plaintiff's control. The plaintiff challenges the conclusion that the lack of childcare was in her control to resolve. She claims there were several factors for her inability to obtain childcare, including her work schedule from 1:45 p.m. to 10:15 p.m., the lack of childcare facilities during those hours and her need to keep her own son, in her sister's absence, when his father wasn't able to do so.
The plaintiff did not file a motion to correct the findings of fact pursuant to Practice Book § 22-9. Her failure to do so precludes review of the findings by this court. See Resso v. Administrator, 147 Conn.App. 661, 665, 83 A.3d 723 (2014); JSF Promotions, Inc. v. Administrator, 265 Conn. 413, 422, 828 A.2d 609 (2003). Moreover, the court " cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of the witnesses." Practice Book § 22-9.
The board's conclusion, that the plaintiff was discharged for willful misconduct when she voluntarily left her employment in the face of imminent discharge because of her absences, reasonably follows from the findings of fact and is not arbitrary, illegal or an abuse of discretion.
The appeal is dismissed.