Opinion
CV175038207
04-23-2018
Steven WHALEY v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT
UNPUBLISHED OPINION
OPINION
Thomas Corradino, J.T.R.
The record reveals that the Administrator ruled that Mr. Whaley was ineligible for employment benefits. The plaintiff appealed the administrator’s decision pursuant to Section 31-242 of the general statutes. The referee affirmed the administrator’s ruling after conducting a hearing and making findings of fact. The referee’s decision was then appealed to the Board of Review pursuant to Section 31-249 of the. General Statutes. The Board adopted the referee’s findings of fact and affirmed the referee’s decisions having adopted the referee’s finding of facts. The plaintiff then appealed to the Superior Court pursuant to Section 31-249b of the General Statutes.
An examination of the record indicates no motion to correct the findings of the Board was filed.
A.
The court will first review the standards that should be applied in reviewing decisions of the Board of Review in deciding matters such as this under the Unemployment Compensation Law and some of the legal issues and considerations which arise in an appeal of the type now before the court.
First, very generally, it has been said by the court in DaSilva v. Administrator, 175 Conn. 562, 569 (1978) that " the purpose of the (Unemployment Compensation) act is to provide some income for the worker earning nothing because he is out of work through no fault or act of his (sic) own’ ... Since the purpose of the act is clearly remedial in character, it is to be liberally construed in order to accomplish its humanitarian purpose ..." See also Ertman v. Fusari, 447 F.Supp. 1147, 1149 (D.Conn. 1977).
The standards to be applied by the courts in reviewing decisions of the Board of Review in Unemployment Compensation are set out in Manukyan v. Administrator, 139 Conn.App. 26, 33-35 (2012). The court quoting from earlier opinions, said:
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, Unemployment Compensation. Act, 209 Conn. 381, 985-86, 551. A.2d 724 (1988). " [The court] is bound by the findings of subordinate facts and reasonable factual conclusions made by the appeals referee where, as here, the board of review adopted the findings and affirmed the decision of the referee." DaSilva v. Administrator, Unemployment Compensation Act, 175 Conn. 562, 564, 402 A.2d 755 (1978). " If the referee’s conclusions are reasonably and logically drawn, the court cannot alter them." Howell v. Administrator, Unemployment Compensation Act, supra, 174 Conn. At 533, also see Johnson v. Administrator, 3 Conn.App. 264, 267 (1985).
" A party’s failure to file a timely motion for correction of the board’s findings in accordance with [Practice Book] § 22-4 prevents further review of those facts found by the board." JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. at 422. Practice Book § 22-9(9) provides in relevant part: " [The court] 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. It cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses."
The court has also held that: " A fact is not proven merely because a claimant testifies to it and no one denies it, for it is the province of the referee as trier of fact to determine the credibility of the witnesses and the weight of the evidence." Howell v. Administrator, Unemployment Compensation Act, 174 Conn. 529, 532 (1978).
On the other hand in Fullerton v. Administrator, Unemployment Compensation Commissioner, 280 Conn. 745, 760-62 (2006), the court in hearing an appeal from the actions of the Administrator in an unemployment compensation case did say, quoting from an earlier opinion:
" [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable ... Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact ... Our ultimate duty is to determine, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." Also see JSF Promotions, Inc. v. Administrative, Unemployment Compensation Act, 265 Conn. 413, 417 (2003).
In other words as the court said in Finkenstein v. Administrator, 192 Conn. 104, 112 (1984): " The 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."
Further discussion should be made regarding the consequences of a failure to file a motion to correct pursuant to Practice Book Section 22-4. That section reads as follows: " if the appellant desires to have the finding of the Board corrected he or she must, within two weeks after the record has been filed in the Superior Court, unless the time is extended for cause by the board, file with the board a motion for the correction of the finding and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for, certified by the stenographer who took it; but if the appellant claims that substantially all the evidence is relevant and material to the corrections sought, he or she may file all of it, so certified, indicating in the motion so far as possible the portion applicable to each correction sought. The board shall forthwith upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.
Pro se litigants are not exempt from compliance with the provisions of Practice Book Section 22-4, Tosado v. Administrator, 130 Conn.App. 266, 275 (2011) Horton and Knox in Volume 1 pg. 981-83 of the Connecticut Practice Series state as noted above that failure to file a motion to correct prevents the court from further review of those facts formed by the Board further citing Reeder v. Administrator, 88 Conn.App. 556, 558 (2005) and Manukyan v. Administrator, 139 Conn.App. 26, 34 (2012). As said by Horton and Knox at page 982 " The motion to correct is no mere technical requirement. If it is claimed that the finding is in some way incorrect, this should be first called to the attention of the Board in order that it may have an opportunity to supply the omitted facts or restate the findings in view of the claims being made in the motion."
B.
The record in this case has been certified in accordance with Section 31-249 C.G.S. The issue presented by this case is framed by the requirements set forth in Section 31-235 C.G.S. A providing that an individual is eligible to recover unemployment benefits with respect to any week if under subsection (2) of the statute (2) ..." such individual is physically and mentally able to work and is available to work and has been and is making reasonable efforts to obtain work ..."
In Samson v. Administrator, 29 Conn.Supp. 316 (1971) said a claimant is " available for work means a readiness and ability to accept suitable employment," id., p. 317. In Stapleton v. Administrator, 142 Conn. 160, 164-65 (1955) the court said " to be available for work within the meaning of the statute, one must be ready, able and willing to accept suitable employment. He must be exposed unequivocally to the labor market," quoted in Manukyan v. Administrator, 139 Conn.App. 26, 35 (2012). In Lenz v. Administrator, 17 Conn.Supp. 315, 317 (1951) the court noted that the burden of proving availability for work is upon the claimant, id., p. 317.
A fair and reasonable system should inform applicants how they can in fact establish " reasonable efforts to obtain work." Claimants are mailed a guide entitled: " Unemployment Insurance: A guide, to Collecting Benefits in the State of Connecticut." The referee’s decision does not quote from this guide which was not made part of the record but the referee noted in his " analysis and conclusion of law" that the guide explains the " reasonable efforts requirement," including the nature and frequency of the employer contacts a claimant must make. It also includes an advisement to maintain a detailed record of these contacts. The referee noted that Mr. Whalley testified he received the guide.
Turning to the facts of this case there is no dispute that from September 11, 2016 to December 31, 2016 the plaintiff was physically and mentally able to work and was available to work. The referee’s finding of facts indicates in (6) that he is available to work Sunday through Saturday 40 hours per week. Finding (13) notes he has an addiction to cocaine but in finding (15) the referee states the claimant is in a program which he attended two days a week and a clinician stated there are no barriers which would prevent the plaintiff from currently being able (and) available to work on a full-time basis." Finding (16) states he successfully completed the program on December 7, 2016. On December 29, 2016 the plaintiff submitted a memorandum with an attachment from the treatment program. It is dated October 14, 2016 and states the plaintiff must continue to look for employment and the treatment hours are flexible so that he could search for work and be employed.
The real issue in this case is whether in the September 11 to December 31, 2016 period the plaintiff made " reasonable efforts to obtain work" pursuant to subsection (2) of § 31-235 (GGSA). The referee in his analysis stated that " the courts have repeatedly ruled that fewer than three efforts to obtain work per week generally do not constitute reasonable efforts," Kuchy v. Administrator, CV12-5014402; Garro v. Administrator, CV10 5015088; Elliot v. Administrator, CV07 4014570, also compare Carr v. Administrator, 26 Conn.Supp. 336 (1966) and Velez v. Administrator, 24 Conn.Supp. 507 (1963). In the Carr and Garro cases the courts did not explicitly apply a three contacts per week rule but ruled against claimants because employer contacts amounted to one or two visits per week which the commissioner found insufficient to support a claim for benefits and the courts could not say was an unreasonable action. But interestingly the referee’s conclusion in this case states the courts have found less than three contacts a week " generally do not constitute reasonable efforts to secure employment and thus receive benefits." (Emphasis by the court.) And as Judge Pittman pointed out in Askamit v. Administrator, 11-501 5465 CV 11 5015465 the statutes do not prescribe a three-day rule and the regulations do not explicitly adopt it see Conn. State Agencies § 31-235-22. She stated that therefore " reasonable efforts were likely to vary with the circumstances." Judge Pittman said if the Carr case is read closely this is what it was saying.
The court in Askamit noted the plaintiff in that case was a business owner and executive and he pointed out he had to " tailor his job search methods to those appropriate for a business executive seeking job offers from other business executives ... a cookie cutter rule of three personal contacts per week would not be appropriate for an executive job search." The case was remanded for a hearing before a referee consistent with the reasoning of the opinion. Given the foregoing the reasoning of cases like State Medical Society v. Board of Education, 208 Conn. 709, 719 (1988), where the court said: " We have accorded deference to such a time-tested agency interpretation of a statute but only when the agency has consistently followed its construction over a long period of time, the statutory language is ambiguous, and the agency’s interpretation is reasonable," cannot be relied on to establish a rigid three employee contracts a week rule for every case.
But it is a factor that can be taken into account as an example of what other courts have done. And all of the foregoing does not mean, however, that there should be acceptance of a claim of reasonable effort to seek employment where there is only minimal effort to seek employment through employer contacts even though we were to accept Judge Pittman’s rule that " reasonable efforts were likely to vary with the circumstances."
Thus in this case the plaintiff was not applying for a position as a business executive. Here the submission the plaintiff made to the referee to show his employer contacts list eight positions applied for to various prospective employers for the time period at issue. Five involved custodial positions, one says technician, another " auto damage" and another " night maintenance," see page 33 of the record. Two of the employer contacts were made the week ending December 24, 2016 and six contacts were made the week ending December 31, 2016. The referee decided that the plaintiff should be eligible for benefits for the last mentioned week- six employer contacts- but not eligible where only two contacts were made for the week ending December 24, 2016. Considering the type of jobs being applied for and the fact that he was able to make employee contacts six times on the last week it was not unreasonable to refer to trial court cases concluding less than three contacts- here only two- would not qualify for eligibility for benefits for the week ending December 24, 2016.
More to the point perhaps is that from September 11, 2016 through December 24, 2016 the plaintiff made no employer contacts- a period of three months.
Why could he make six employer contacts in one week, only two the week before, and none for three months? One does not even need the three contacts a week rule to conclude that there was no reasonable effort to find work from September 11 to December 24, 2016. As noted the referee did conclude the claimant plaintiff was entitled to benefits for the week ending December 31, 2016.
The referee issued his decision which was mailed on January 6, 2016. The record indicates that there was a January 19, 2017 fax from the plaintiff, presumably to the referee claiming other employer contacts in the fall of 2016 which had not been brought to the attention of the referee. The Board rejected this effort to supplement the record. Subsection (b) of section 31-248 of the General Statutes reads as follows: " (b) Any decision of a referee may be reopened, set aside, vacated or modified on the timely motion of a party aggrieved by such decision ... on grounds of new evidence or if the ends of justice so require upon good cause shown."
The court concludes the referee’s decision should not be reopened or modified based on the foregoing statutory language for two reasons. For one thing as the Board noted upon the appeal from the referee’s decision the evidence offered by way of the January 19th fax was not " new evidence." A checklist sent out to applicants tells claimants to bring to the hearing before the referee a dated list of your weekly job-seeking efforts.
Four dates in October and one in November 2016 are referred to and as the Board noted they should and could have been presented at the January 4, 2016 hearing before the referee. The evidence was not submitted until after the referee’s hearing and decision. The Board further noted in the appeal from the referee’s decision that " the claimant has not alleged any circumstances that constitute good cause for failing to present these lists until this late stage in the proceedings."
Even if the Board and now the court has erred in the foregoing conclusion, there is a second reason why the attempt to supplement the record cannot be said to be based on good cause or the interests of justice. Let us examine page 46 of the transcript which sets forth the contents of the January 19, 2016 fax sent by the plaintiff. Mr. Whaley claimed job contacts on October 15, 2016 then on October 18 and 20, 2016, October 30, 2016 and November 1, 2016. October 15th is the last day of the week of October 9, 2016, and October 18 and 20 are part of the week of October 16, 2016. Thus even if for some reason these contacts should be considered by this court there was only one contact the week ending October 15th and two contacts the week ending October 22, 2016. October 30, 2016 and November 1, 2016 represent only two contacts for the week ending November 5, 2016. None of this rebuts the referee’s conclusion even if it were to be admissible.
It should also be noted that prior to the Board’s decision from the appeal of the referee decision Mr. Whaley offered a list of job contacts he made with employers in January and February 2017. But this cannot be considered by the court nor could it have been considered by the Board since it was beyond the jurisdictional limit of the referee. If anything these submissions further underline the fact that Mr. Whaley certainly knew how to list employer contacts and the relevance of doing so to establish his claim for unemployment benefits.
This last observation leads the court to discuss an argument advanced by the plaintiff at the appeal hearing on this matter. He argued that he actively sought employment by contacting programs that help people secure positions. In his August 2017 brief and his December 29, 2017 filing he said he used a program called Connecticut Hire (CT Hire) beginning in September 16, 2016. He was on the computer for a good portion of the day. Some of his testimony was confusing to the court. At page 9 of the transcript he described his involvement with a program such as CT Hire. He said " You put your resume in it and if it’s compatible with what, you know my job title is ... I can either go do an application in order to do a job." He said he told this to the Referee and the Board. The transcript was never requested and ordered. It is not a reasonable effort to secure employment to access the computer or in older times thumb through the yellow pages to find a job or to see if one job or another seemed attractive. Actual contact with a prospective employer has to be made and just as importantly verified to the state agency entrusted with administering this ameliorative program set up to help people having difficulty securing employment. Resources of the program cannot be drained by people not really making that effort. Mr. Whaley knew very well that he had to submit lists of actual employer contacts. He submitted one such list to the referee at the appropriate time and two others after the referee acted. All of them have a designation of " Method of Contact" and the position applied for by a claimant. He made six contacts for the last week in December and only two contacts for the period of September 11 through December 17, 2016. That is what the referee had properly before him when he decided this case, and even if the October and November contacts are to be considered in all the foregoing period he only made 14 employer contacts in over three months and imposed no burden on being able to contact employers.
Nothing prevented him from actively contacting employers. The treatment document attached to his December 29, 2016 submission can be viewed as an admission in the litigation even if not part of the record. In the document he had to go for treatment for his medical problem two times a week for two hours. But the hours were flexible, they could be in the afternoon or the evening.
As counsel for the administrator pointed out there must be an actual employer contact by way of a resume or e-mail with attached documents with respect to a specific position. The only verifiable contacts Mr. Whaley made by way of resume and on line are what he submitted or attempted to submit to the referee or Board. Finally, as noted, he was applying for custodial type position not executive positions where one or two applications a week or even less might be based on the difficulty in preparing for employer contacts.
In any event for all the foregoing reasons the appeal is dismissed.