Opinion
No. CV 02 0189981
June 23, 2003
MEMORANDUM OF DECISION
Arthur Simmons (claimant) applied for unemployment compensation benefits after his employment with RFC Health Care Services, Inc. (employer), a medical company delivering medical and related supplies to various locations, was terminated by the employer on December 28, 2001. The claimant had been working for this employer for about fifteen months as a part-time delivery driver.
The employer contends that the claimant's employment was terminated for willful misconduct because he delivered a package containing medication to the wrong address in New York City on December 27, 2001, after first getting lost in traffic and then failing to maintain communication with the employer in order to rectify the mistaken delivery.
Pursuant to General Statutes § 31-222 et seq., an examiner for the named defendant, the administrator of the Unemployment Compensation Act (administrator), determined that the claimant was terminated for failing to follow proper company procedures in that he took too long to make the delivery in question and then dropped the package at the wrong location. The administrator further determined that the claimant was discharged for a knowing violation of a reasonable and uniformly enforced rule or policy of the employer and that this constituted "willful misconduct," and therefore denied his application for unemployment compensation benefits.
In accordance with General Statutes §§ 31-241 and 31-237j, the claimant 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 stated that the issue was whether the claimant had been discharged for willful misconduct. The appeals referee made the following factual findings: (1) on December 27, 2001, the claimant was supposed to deliver certain prescription medicines to the New York State Psychiatric Institute and was given specific directions regarding its location; (2) the claimant got lost in traffic CT Page 7389-eg and when he finally arrived at his destination, a security guard advised him to go to the attending physician's office instead; (3) the claimant did not contact the employer to verify the new address for the delivery; (4) this physician called the employer and stated that the package had been delivered to the wrong location; (5) the employer tried unsuccessfully to page the claimant to direct him to the right location; (6) the claimant had a previous history of delays in delivering medical packages and going to the wrong address; (7) all the drivers, including the claimant, had been told to always keep their beepers on and in an operative condition; and (8) the patient for whom the medicine was destined did not get it in a timely fashion and the employer lost the account as a result.
The appeals referee concluded in a decision dated March 15, 2002, that although the claimant's conduct "adversely affected" the employer, the claimant had not engaged in intentional willful misconduct. Therefore, the referee reversed the administrator's decision denying unemployment compensation benefits to the claimant and sustained his appeal.
The employer appealed this decision to the Employment Security Appeals Division Board of Review (board) in accordance with General Statutes § 31-249. The board reviewed the record, including a tape recording of the hearing before the appeals referee, and on May 7, 2002, agreed with the factual determinations made by the referee, including the determination that the claimant followed the instructions of the security guard in delivering the medication to a physician's office, was unable to retrieve the package because of closing hours, had his beeper on, and had never failed before to make a "timely delivery."
The board concluded that the employer had not established or proved that the claimant had acted in reckless and deliberate disregard of the employer's interests. The appeals referee's decision was affirmed and the claimant was granted unemployment compensation benefits.
The employer, 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 on March 15, 2003.
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 CT Page 7389-eh 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).
As to the standard of review, our Supreme Court has indicated that this 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).
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, 43 Conn. App. 779, 785, 686 A.2d 134 (1996).
General Statutes § 31-236 (a) (2) (B) provides in pertinent part that an individual is ineligible for benefits if he or she was discharged for "willful misconduct in the course of the individual's employment." "Willful misconduct" is defined as "deliberate misconduct in willful disregard of the employer's interest, or a single knowing violation of a CT Page 7389-ei reasonable and uniformly enforced rule or policy of the employer, when reasonably applied." General Statutes § 31-236 (a) (2) (16).
Additionally, Section 31-236-26a of the Regulations of Connecticut State Agencies provides that "[I]n order to establish that an individual was discharged or suspended for deliberate misconduct in willful disregard of the employer's interest, the Administrator must find all of the following: (a) Misconduct. To find that any act or omission is misconduct the Administrator must find that the individual committed an act or made an omission which was contrary to the employer's interest, including any act or omission which is not consistent with the standards of behavior which an employer, in the operation of his business, should reasonably be able to expect from an employer. (b) Deliberate. To determine that misconduct is deliberate, the Administrator must find that the individual committed the act or made the omission intentionally or with reckless indifference for the probable consequences of such an act or omission. (c) Willful Disregard of the Employer's Interest. To find that deliberate misconduct is in willful disregard of the employer's interest, the Administrator must find that: (1) the individual knew or should have known that such act or omission was contrary to the employers expectation or interest and (2) at the time the individual committed the act or made the omission, he understood that the act or omission was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by mitigating circumstances of a compelling nature. Such circumstances may include: (A) events or conditions which left the individual with no reasonable alternative course of action; or (B) an emergency situation in which a reasonable CT Page 7389-ek individual in the same circumstances would commit the same act or make the same omission, despite knowing it was contrary to the employers expectation or interest."
The board's determination that the plaintiff's conduct did not constitute a reckless disregard of the employer's interests finds support in Section 31-236-26b of the Regulations of Connecticut State Agencies regarding violations of an employers' rules and regulations. The board found in effect that the penalty of discharge was disproportionate to the offense.
Section 31-236-26b of the regulations provides in pertinent part that: "a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied" occurs if: (1) the employee knew or should have known the rule: (2) the employee's conduct violates the rule; (3) the employee was aware that he or she engaged in such conduct; (4) the rule is reasonable in light of the employer's business interests; (5) there is a clear relationship between the rule, the conduct regulated and the employer's business interest; (6) the rule is uniformly enforced in that the employer treats similarly situated employees subject to the rule in a similar manner if the rule is violated; and (7) the rule is reasonably applied in that the action taken by the employer is appropriate in light of the violation of the rule and the employer's interest and there were no compelling circumstances preventing the employee from adhering to the rule.
Additionally, there are three other reasons why the court affirms the decision of the board in this particular case. The first is Practice Book § 22-4, which provides, in pertinent part, that if an appellant wishes the board's findings to be corrected, he or she 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 portions of or the entire transcript. In Calnan v. Administrator, supra, 43 Conn. App. 785, 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, 106-7, 686 A.2d 1014 (1997). The plaintiff in this 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.
The second reason is that the plaintiff, a corporation, is attempting to file a pro se appearance in this court. However, "[i]n Connecticut, a corporation may not appear pro se . . ." Expressway Associates II v. Friendly Ice Cream Corp, of Connecticut, 34 Conn. App. 543, 546, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994). The present appeal is subject to dismissal on that ground alone. Id., 551.
Finally, the court must take into account the axiom that "[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).
In conclusion, the court finds that for the reasons noted the board was justified in finding that the claimant did not engage in willful misconduct and was entitled to unemployment benefits. Therefore, the named defendant's motion (#101) for judgment dated June 26, 2002, is granted and the plaintiff's appeal is dismissed. CT Page 7389-ej
So Ordered.
Dated at Stamford, Connecticut, this 23rd day of June 2003.
William B. Lewis, Judge