Opinion
No. CV 02 0192205
October 31, 2003
MEMORANDUM OF DECISION
Isabell N. Walley (claimant) filed a claim for unemployment compensation benefits against her former employer, Newkirk Whitney Funeral Homes (employer), for whom she had worked as a receptionist for approximately one year and eight months. The claimant contends that her employment was improperly terminated on December 3, 2001, and that as a result she was entitled to unemployment benefits. The employer alleged that the claimant was terminated because she had been tardy on numerous occasions despite warnings of disciplinary action. The employer argues, therefore, that the claimant was ineligible for unemployment benefits.
The named defendant, the administrator of the Unemployment Compensation Act, pursuant to General Statutes § 31-222 et seq., granted the claimant's application for unemployment compensation benefits on the basis that she had not engaged in wilful misconduct by reason of her tardiness.
The employer appealed the administrator's decision to the Employment Security Appeals Division, pursuant to General Statutes §§ 31-241 and 31-242. The matter was referred to an appeals referee for a hearing de novo. The referee stated that the issue presented was whether the claimant had been discharged for wilful misconduct. The referee made the following factual findings: (1) the claimant had been late for work approximately eight times during the month of October 2001; (2) the claimant received a written warning on October 25, 2001, after being late on that date; (3) the claimant was also instructed that upon arriving at work she should report directly to the general manager in order to verify her arrival time for work, an instruction which the claimant failed to follow; (4) the claimant was late on seven more occasions during November 2001, after receiving the written warning that further tardiness would result in termination of her employment; and (5) the claimant was late for work on December 3, 2001, which resulted in the termination of her employment.
The referee concluded that the claimant had committed wilful misconduct as evidenced by excessive tardiness despite warnings to cease such conduct. Accordingly, the referee reversed the administrator's decision and denied unemployment compensation benefits.
The claimant appealed this decision to the Employment Security Appeals Division Board of Review (board) in accordance with General Statutes § 31-249. The board pointed out that the claimant denied that she was late for work, but that the referee had made a "credibility determination" that the claimant was in fact late for work on many occasions. The board adopted the referee's findings that there had been many instances of tardiness, including on December 3, 2001, the claimant's last day of work, and that the claimant had received a written warning about such conduct. Thus, the board affirmed the decision denying unemployment compensation benefits to the claimant on the basis that she had engaged in wilful misconduct within the meaning of General Statutes § 31-236 (a)(2)(B).
The claimant then moved to reopen the board's affirmance of the referee's decision, which the board denied, while noting that: "Thus, the final incident for which the claimant was discharged was an instance of tardiness that was the last in a pattern of tardiness."
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 July 8, 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 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 also 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, the 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." (Internal quotation marks omitted.) 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).
In reviewing this appeal, it is also noted that Practice Book § 22-4 provides, in pertinent part, that if an appellant wishes 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 portions of or the entire transcript. 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 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.
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)(B) provides in pertinent part that one is ineligible for benefits if discharged for "wilful misconduct in the course of the individual's employment." General Statutes § 31-236 (a) (16) contains a definition of "wilful misconduct" indicating it means "deliberate misconduct in wilful disregard of the employer's interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied."
Section 31-236-28 of the Regulations of Connecticut State Agencies provides that: "tardiness constitutes wilful misconduct, under section 31-236-26, only if the pattern of tardiness constitutes either wilful disregard of the employer's interests as defined in section 31-236-26a of the regulations or a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, as defined in section 31-236-26b of these regulations."
Section 31-236-26 of the Regulations provides in pertinent part that: "To find that any act or omission is wilful misconduct in the course of employment . . . the Administrator must find that: (1) the individual committed deliberate misconduct in wilful disregard of the employer's interest, as defined in section 31-236-26a; or (2) the individual committed a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied . . ."
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 employee. 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 employer's 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 individual in the same circumstances would commit the same act or make the same omission, despite knowing it was contrary to the employer's expectation or interest."
Section 31-236-26b provides that: " Knowing violation. To find that an individual engaged in a single knowing violation of a rule or policy of the employer, the Administrator must find that: (1) the individual knew of such rule or policy, or should have know of the rule or policy because it was effectively communicated to the individual. In determining whether the rule or policy was effectively communicated to the individual, the Administrator may consider the manner in which the rule or policy was communicated. Evidence of the employer's actions, including but not limited to, posting of the rule or policy within the company at a place likely to be observed by the employees; explanation of the rule at a training or orientation session; verbal explanation of the rule to the individual; distribution of a document to the individual which contained the rule or policy; warnings or other disciplinary action; and evidence of the individual's receipt of any document containing the rule or policy should be considered in determining whether the rule or policy was effectively communicated by the employer to the individual; (2) the individual's conduct violated the particular rule or policy; and (3) the individual was aware he was engaged in such conduct. (A) If the rule or policy requires an intentional act, the Administrator must inquire into the individual's intent to violate such rule or policy; (i) An example of a rule or policy that requires an intentional act is a rule prohibiting falsification or deliberate misrepresentation of an employer's business records. (b) Reasonable Rule or Policy. To find that a rule or policy instituted by an employer is reasonable, the Administrator must find that the rule or policy furthers the employer's lawful business interest. The administrator may find an employer rule or policy to be reasonable on its face. For example, a rule prohibiting fighting in the workplace is reasonable on its face. When evidence is offered to demonstrate that the rule or policy is unreasonable, the Administrator may consider whether: (1) the rule or policy was reasonable in light of the employer's lawful business interest. Examples of reasonable rules or policies that further the employer's lawful business interest may include, but are not limited to, a rule or policy prohibiting eating at the employee's work station to ensure office cleanliness; and a rule or policy requiring employees to wear a hair net or hat while preparing food for customers for health reasons; and (2) there is a clear relationship between the rule or policy, the conduct regulated and the employer's lawful business interest.
(c) Uniformly Enforced. To find that a rule or policy of the employer was uniformly enforced, the Administrator must find that similarly situated employees subject to the workplace rule or policy are treated in a similar manner when a rule or policy is violated.
(d) Reasonable Application. To find that a rule or policy of an employer was reasonably applied, the Administrator must find: (1) that the adverse personnel action taken by the employer is appropriate in light of the rule or policy and the employer's lawful business interest; (2) An example of an adverse personnel action that is appropriate in light of the violation of the rule or policy prohibiting tardiness is an individual's discharge or suspension for habitual tardiness without reasonable excuse after warnings.
(B) An example of an adverse personnel action that is not appropriate in light of the violation of the rule or policy is an individual's discharge for violating a dress code policy, one time, by wearing a skirt that is one inch shorter than that allowable by the policy; and (2) that there were no compelling circumstances which would have prevented the individual from adhering to the rule or policy. Examples of circumstances which are of a compelling nature include, but are not limited to, serious weather-related problems, rules which are contradictory or require actions that are illegal or improper, rules the adherence to which could result in injury to the health or safety of an individual or other objectively verifiable circumstances which are of a compelling nature."
The court agrees with the board that the plaintiff's tardiness was documented by the employer, and that the employer had effectively communicated to the plaintiff that any further tardiness would result in termination of her employment. The board's determination denying unemployment compensation benefits to the claimant was within the board's competence and therefore 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 existence of wilful misconduct due to a pattern of tardiness and the sufficiency of the warnings given to the plaintiff. Therefore, the defendant board's motion (#101) for judgment dated December 10, 2002, is granted. The board's decision is affirmed, and judgment hereby enters dismissing the plaintiff's appeal.
So Ordered.
Dated at Stamford, Connecticut, this 31st day of October 2003.
William B Lewis, Judge