Opinion
No. CV 07-4027797
December 24, 2008
MEMORANDUM OF DECISION
The plaintiff Frank Addona appeals, pursuant to General Statues § 31-249b, from the decision of the employment security appeals division board for review affirming the decisions of the appeals referee and administrator denying the plaintiff eligibility for unemployment benefits. The administrator moves to dismiss the appeal.
According to the record, on March 9, 2007, Sargent Manufacturing Co. (Sargent), suspended the plaintiff, Frank Addona from his job for a period of seven weeks. In his application for unemployment compensation benefits, Addona alleged that the company's human resources manager suspended him that day as a result of an incident in which he voiced his displeasure about a union contract to another employee named Bobby. (ROR p. 1.) He stated that he later spoke to members of the union negotiating committee about the matter. Although he acknowledged that he spoke loudly on both occasions, he denied that he used profanity or did anything wrong.
Sargent opposed Addona's application on the ground that the company suspended him because he created a disturbance, used profanity and continued to display his anger despite the efforts of other employees to calm him down. The company also alleged that it suspended Addona because he left his work station to have conversations with other people, which, along with his other behavior, violated company policy. (ROR p. 3.) In rebuttal, Addona alleged that he often left his work station to deliver work to other areas, and that he was doing so when he encountered the members of the negotiating committee. (ROR p. 1.)
Following a hearing on March 28, 2007, the administrator determined that Addona violated company policy in that he created a disturbance, raised his voice and spoke in an offensive manner, and left his work station. Accordingly, the administrator denied Addona's claim for benefits pursuant to General Statutes § 31-236(a)(2)(B) and § 31-236-26b of the Regulations of Connecticut State Agencies. (ROR p. 6.)
On April 4, 2007, Addona appealed the administrator's decision to the employment security appeals division. (ROR p. 8.) An associate appeals referee (referee) notified the parties that the hearing on the appeal would be held before him on April 19, 2007, and that they both were required to attend. Of particular relevance to this appeal, the notice also stated the following:
Witnesses with first hand knowledge of the case must attend if you want to win your case. Hearsay testimony of an agent, friend, or employee who does not have first-hand knowledge of the situation will usually not be given as much weight as testimony of a witness who has first-hand knowledge. Second-hand testimony and written statements by absent witnesses are hearsay because the author is not available to be cross-examined. BRING THE PEOPLE WHO HAVE DIRECT KNOWLEDGE . . . Bring at least two copies of all documents . . . (ROR p. 16.)
The record demonstrates that Mr. Addona appeared at the hearing in person, as did two representatives for Sargent, Tony Fasulo, who is a manager and Addona's supervisor, and Janice Tantinimico, who is the company's human resources manager. (ROR p. 40-41.)
Apparently, the hearing was not completed. On April 23, 2007, the referee sent the parties a notice that the hearing would continue on May 1, 2007, and would be conducted by telephone. (ROR p. 16.) A note that "Tel (objects.)" is handwritten on the notice under Addona's name and address. (ROR p. 16.) Addona and the two representatives from Sargent appeared at the hearing by telephone. (ROR p. 41.)
On May 4, 2007, the appeals referee issued his decision. (ROR p. 40.) Therein, the referee made the following findings of fact: (ROR p. 41-42.) Addona was employed with Sargent full-time as a plater from 1985 to March 9, 2007, when he was suspended for seven weeks for insubordination. On that day, Addona talked to Bobby Cox about a matter related to their union contract, in the midst of which Addona used profanity in referring to union members. Cox walked away from Addona and informed the general manager that Addona "went off" on a union member. Someone advised Addona to remain in his work area and to refrain from creating a disturbance. Later that day, after he had time to cool down, Addona left his work area and initiated an argument with two co-workers, during which he called one of them an idiot. Other employees told Tantimonico that they were uncomfortable with Addona's anger and profanity. Previously, in August 2004, Sargent had suspended Addona for creating a disturbance in the workplace.
In its decision on Addona's appeal from the referee's decision, the board of review replaced the word "insubordination" with the phrase "creating a disturbance in the work place."
In its decision on Addona's appeal from the referee's decision the board added the following: "[Addona] understood from the prior suspension that creating a disturbance in the workplace was a terminable offense." (ROR p. 60.)
The referee identified the issue in the appeal as whether Sargent suspended Addona for deliberate misconduct in the course of his employment, and cited as relevant authority General Statutes § 31-236(a)(2)(B) and § 31-236(a)(16) of the Regulations of Connecticut State Agencies. (ROR p. 42.) The referee reached the following conclusions of law. (ROR p. 43.) Although, "[a] single, hot-headed incident of insubordination or a display of anger involving the use of profanity that is spontaneous or borne of frustration does not generally constitute willful misconduct . . . [T]he totality of the circumstances must be examined in making a determination on a case-by-case basis . . . Wilful misconduct may be found where a claimant, after being warned to refrain from such conduct, persists unreasonably in prolonging an argument with a supervisor or resumes an argument after having had time to cool down . . . The referee finds that by unreasonably prolonging an argument after being directed otherwise, that the claimant's conduct constitutes willful misconduct in the course of his employment. The employer suspended the claimant for willful misconduct in the course of his employment. As a result, the claimant is disqualified from receiving unemployment compensation benefits pursuant to General Statutes § 31-236(a)(2)(B)." Accordingly, the referee affirmed the administrator's determination and dismissed Addona's appeal. (ROR p. 43.)
The referee actually stated that "[t]he issue raised by this appeal is whether the employer discharged the claimant for deliberate misconduct in the course of his employment." It is apparent that the referee mistakenly used the word "discharged" instead of "suspended."
In his decision, and of consequence to this appeal, the referee acknowledged that most of the testimony offered by Sargent's was hearsay. At oral argument before this court, the administrator conceded that there was no direct eyewitness testimony adduced at the hearing relevant to Addona's conduct on the date in question. While the referee noted that hearsay testimony generally has less evidentiary value then first hand testimony, the referee in his decision and the administrator on appeal posit that Addona's own testimony corroborated the contentions presented by Sargent in that although Addona denied using profanity, "his credibility was undermined by his failure to adequately describe the events . . ." (ROR p. 42.)
Addona appealed the referee's decision to the board of review. (ROR p. 46.) In his appeal, Addona objected to the manner in which referee conducted the hearings. (ROR p. 47.) At the April 2007 hearing, when the referee asked Addona if he wanted the second hearing to be conducted by telephone or in person, Addona asked that it be done in person. At the beginning of the May 2007 hearing, Addona objected to the hearing being conducted by telephone on the grounds that it inhibited his right to a fair and adequate hearing and did not give him an equal opportunity to express himself and present evidence, as Sargent had been able to do at the in person hearing in April. Addona also maintained that the telephone reception was not clear, the referee did not have the evidence that was submitted to him at the previous hearing and time was wasted while the referee looked for these documents and sent Addona's exhibits to Sargent via facsimile.
Addona states that when he submitted his documents to the commission before the May hearing, the receptionist told him that he and/or the commission did not need to send copies to Sargent.
In his appeal, Addona has referred to the tape recordings of the hearings as providing evidence of the matters he raises therein. (ROR pp. 47-48.) Addona also claims the following regarding the tape recording: (ROR p. 47.) After Addona received the referee's decision, he ordered and paid for a copy of the tape recording of the hearings. The tape that he received did not include the April hearing and only contained the first portion of the May hearing, as it stopped after the referee stated "will flip tape over to continue hearing on tape." He claims this omission deprived him of the opportunity to review the tape and to prove to the board that "a big injustice was done." Addona also raised numerous objections to the referee's findings of fact and conclusions of law, including that many of them were untrue or based on hearsay. (ROR pp. 48-49.)
The board of review issued its decision on Addona's appeal on July 5, 2007. (ROR p. 58-61.) Therein, the board addressed Addona's procedural and substantive arguments. As to Addona's objection to the referee's decision to hold the hearing by telephone, the board noted that courts in Connecticut and other states have decided that telephone hearings are constitutional, and that the board has previously determined that telephone hearings satisfy the requirements of procedural due process. Further, the board noted that during the hearings, none of the participants complained that he or she could not hear the referee or the witnesses, and the referee asked the witnesses to repeat statements that were not clearly audible. Accordingly, the board concluded that Addona was not harmed by the referee's decision to conduct the May hearing by telephone.
The board did not address Addona's complaint that the tape recording of the hearing that he received did not contain the full hearings except by noting his complaint and stating that the tape it reviewed contained the full testimony that was taken at both hearings. (ROR p. 59 n. 1.) The board addressed Addona's objection to the referee's reliance on hearsay statements indirectly, by stating that although Sargent did not present any first-hand testimony as to Addona's conduct, it did produce testimony of the manager and human resources manager who testified that they received complaints about Addona's conduct from other employees. (ROR p. 60.)
The board then determined that the referee's findings of fact were supported by the record and that his conclusion was consistent with both the findings and the Unemployment Compensation Act. Specifically, the board agreed with the referee's determination that the incident that led to Addona's suspension was not a single hot-headed incident since the referee found that Addona continued his conduct even after he had a chance to calm down. Moreover, Addona was previously suspended for creating a disturbance and knew that it was grounds for termination. Therefore, the board agreed with the referee that Addona's conduct in "continuing to disturb other coworkers with his angry comments constituted willful misconduct." (ROR p. 60.) The board adopted the referee's findings of fact and decision, with the exception that the board made three corrections to the findings of fact. The two changes that are relevant to his appeal are noted in footnotes 1 and 2 of this opinion. Ultimately, the board affirmed the referee's decision and dismissed Addona's appeal. (ROR p. 60.)
On August 3, 2007, Addona filed the present appeal of the board's decision to the Superior Court with the employment security board of review. (ROR p. 63.) In his appeal, Addona asserts that the referee's decision was not based on direct evidence and/or was based on untrue statements, that he and other employees often leave their work areas and that his suspension in 2004 was inadmissible. He makes several references to the tape recordings of the hearing.
In his brief, Addona states that Sargent's decision to suspend him was unjustified and based on lies and hearsay. He disputes the referee and board's conclusion that he was suspended for willful misconduct and the evidence that they relied upon in reaching this conclusion. In addition he raises the following issues. (1) The admissibility of his suspension in 2004 and several documents related to that incident. (2) The referee and board's consideration of hearsay statements made by Fasulo and Tantimonico. (3) The referee and board's consideration of Fasulo's statements despite the fact that he often contradicted himself. (4) The referee and board's reliance on hearsay and Sargent's failure to produce any direct evidence regarding the incidents that led to his suspension, which, Addona alleges, violated his right to procedural due process. (5) The referee and board's failure to consider Fasulo's statements that he was aware that Addona often left his work area to bring work to or get work from other departments. (6) The referee's decision to conduct the May 1, 2007 hearing by telephone, and Addona's objection thereto, as well as the unprofessional manner in which the referee conducted the hearings. (7) The referee and board's conclusion that Addona was suspended for willful misconduct, which, he claims, is contrary to Connecticut law on the issue.
In response, the administrator of the Unemployment Compensation Act claims that Addona's failure to file a motion to correct precludes him from disputing the board's findings of facts, as well as the board's alleged consideration of statements that lack credibility and/or constitute hearsay. Further, the administrator claims that the court cannot consider what Addona refers to as "transcripts" of portions of the tape recording of the hearing. The administrator urges the court to uphold the board's decision that Addona was suspended for willful misconduct because it was reasonably reached from the facts found by the board. With respect to the procedural due process claims raised by Addona, the administrator has argued that hearsay evidence is admissible in administrative proceedings. At oral argument, the court urged the administrator to articulate whether the admission of hearsay, when said hearsay provides the predominant basis for relevant factual findings, can rise to the level of a procedural due process violation in the context of an administrative proceeding which in part was conducted by telephone over the objection of one of the parties.
DISCUSSION
Although the parties have each raised a number of issues for the court's consideration and decision, the court finds that the procedural due process claim raised by the plaintiff Addona is dispositive of this appeal.
As a result the court does not reach the merits of the remaining claims raised by the parties.
Addona asserts that the referee violated his constitutional right to due process by holding the May 1, 2007 hearing by telephone, despite his objection to that format. He further argues that the due process violation was compounded by the admission of hearsay evidence. Addona told the referee that he preferred that the referee hold the hearing in person, as he did on April 19, 2007, and voiced his objection to the telephone hearing before it began.
The authority of referees to use telephone hearings is not expressly addressed in the Unemployment Compensation Act, General Statutes § 31-222 et seq. Section 31-237j(b) suggests that they have authority to do so at the request of the parties, as it provides that "[t]he referees shall have state-wide jurisdiction and venue, and referee proceedings shall be conducted throughout the state in such places as are reasonably convenient for the parties." In general, according to § 31-244a, "[t]he conduct of hearings and appeals, including notice thereof, shall be in accordance with rules of procedure prescribed by the board in regulations adopted pursuant to sect 31-237g."
These regulations do provide for telephone hearings. Specifically, § 31-237g-17 of the Regulations of Connecticut State Agencies, which addresses the scheduling of hearings before referees, provides in relevant part: "(a) Upon receipt of an intrastate appeal to the Referee Section from a determination of the Administrator, the Referee Section shall . . . promptly schedule a hearing upon such appeal at a location and in a manner that is reasonably convenient for the parties. In the scheduling of such hearings primary consideration shall be given to the goal of prompt disposition of appeals . . . but hearings may be scheduled . . . in such manner as the Referee Section deems necessary to give each party a reasonable opportunity for a fair hearing. To the extent practicable and reasonable under the circumstances of each intrastate appeal, in person hearings, whereby all parties and witnesses are expected to be physically present at the same hearing location, shall be the preferred manner of scheduling and conducting intrastate hearings, but the Appeals Division may, on its own initiative or upon the timely request of a party made, prior to the hearing which shows good cause therefore, make arrangements for conducting a telephone hearing on an intrastate appeal whereby some or all of the parties and witnesses testify by telephone . . . For purposes of this section, good cause includes, but is not limited to: (i) Excessive distance to the hearing location. (ii) Physical disability. (iii) Transportation difficulties. (iv) Security concerns. (v) The need for multiple witnesses . . . (vi) testimony will be taken only on a procedural issue or issue of marginal relevance. (vii) A party has previously suffered extreme inconvenience in connection with the scheduling of the hearing . . . (c) Written notice of the day, date, time, manner and location of each hearing scheduled before a Referee shall be mailed to each party . . . Each such written notice shall . . . (5) in the case of a telephone hearing, be accompanied by clearly identified copies of all pertinent Appeals Division records concerning such appeal."
The record does not provide any information as to why the referee decided to hold the May hearing by telephone. Thus, the court cannot determine whether Sargent requested that the hearing be conducted by telephone and showed good cause for its request, or whether the referee decided to do so on his own initiative. At a minimum, a record should have been made as to why the hearing was conducted by telephone following the objection by one of the parties to this procedure.
Although at least two Connecticut Superior Court decisions have decided that it is permissible for a referee to conduct an unemployment compensation hearing by telephone, see e.g. Flood v. Unemployment Compensation Act, Superior Court, judicial district of New London; Docket No. CV 03 0563147 (May 17, 2007, Hurley, J.) [ 37 Conn. L. Rptr. 49] and Baez v. Administrator, Unemployment Compensation Act, judicial district of Hartford, Docket No. CV 92 0517472 (January 18, 1994, Wagner, J.) [ 10 Conn. L. Rptr. 595], the claim of a procedural due process violation does not appear to have been distinctly raised or addressed. In addition, neither decision specifically discussed whether the combination of a hearing by telephone with the admission of hearsay can rise to the level of a procedural due process violation. Courts in other jurisdictions have decided that conducting a hearing by telephone does violate a claimant's due process rights. See Weston v. Commonwealth, Unemployment Compensation Board of Review, 103 Pa. Commw., Ct. 556, 560 A.2d 953 (1987). In Baez, supra, the court's decision that a telephone hearing is permissible was premised on its belief that there would be " the opportunity to cross-examine and rebut" witnesses. (Emphasis added.) As previously noted, the administrator concedes that there was no direct eye witness testimony elicited at the hearing, or by telephone, as to Addona's conduct. The administrator rather argues that hearsay evidence was nonetheless sufficient when coupled with the board's reliance on the plaintiff's testimony, which the board found lacked credibility. The administrator also submits that the plaintiff's failure to file a motion to correct precludes him from challenging the factual findings of the board.
Under § 31-249b and Practice Book § 22-9, the function of the Superior Court in unemployment compensation appeals is to scrutinize the decision of the board of review to determine whether the Board's factual findings and conclusions are supported by the evidence before the Board. 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(a). Consequently, the court does not retry the case and "is bound by the findings of subordinate facts and the reasonable conclusions of fact." Latina v. Administrator, 54 Conn.App. 154, 159 (1999).
The foregoing principles have been further explained by our Supreme Court as follows: "Review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's finding of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither th[e] [appellate] court[s] 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 of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts." (Citations omitted; internal quotation marks omitted.) JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417-18, 828 A.2d 609 (2003).
In the present case, the scope of review is even more limited because the plaintiff failed to file a motion to correct the findings of the Board. 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 § 22-9 of the Connecticut Practice Book. In addition, Practice Book § 22-4 provides that if an appellant seeks to have the Board's findings 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 such portions of the evidence considered relevant to the corrections being sought. Filing a motion with the Board for correction of the findings is a necessary prerequisite to a challenge to the Board's decision.
The plaintiff did not file a motion to correct the Board's findings of fact, as permitted by Practice Book § 22-4. The plaintiff is consequently precluded from challenging those findings, and this court is precluded from "further review of those facts found by the Board." JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 422.
In the present case, the plaintiff appears pro se. "[I]t is the established policy of Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party . . . [n]onetheless, [a]lthough [the courts] allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." New Haven v. Bonner, 272 Conn. 489, 497-98, 863 A.2d 680 (2004).
However, while it is undisputed that the pro-se plaintiff did not file a motion to correct, courts of this state have not held that a party's failure to file a motion to correct precludes the trial court from reviewing the board's conclusions of law. Moreover, "the failure of a claimant to file a motion to correct has not been considered fatal to the court's ability to review a decision to determine whether the board acted unreasonably or arbitrarily." Crenshaw v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Britain, Docket No. CV 99-0498448 (April 13, 2000, Shortall, J.) [ 27 Conn. L. Rptr. 80].
In the present case, the referee's unexplained decision to conduct a telephone hearing over plaintiff's objection, in combination with the admission of hearsay, concerns the plaintiff's right to procedural due process. "Due process requires a fair hearing before a fair tribunal, which principle applies with equal vigor to administrative adjudicatory proceedings." Petrowski v. Norwich Free Academy, 199 Conn. 231, 235 (1986). "Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence." Connecticut Fund For the Environment, Inc. v. Standard, 192 Conn. 247, 249 (1984). "Once a question of lack of due process is raised, however, the plaintiff has the burden of proof to show the board acted improperly." Fromer v. Boyer-Napert Partnership, 42 Conn.Sup. 57, 72 (1991), aff'd 26 Conn App. 185. The plaintiff also has the burden to show that she was prejudiced by the procedural ruling. Id.
The plaintiff contends that the referee and the board improperly relied on hearsay testimony, and that Sargent did not provide any direct evidence regarding the events that led to his suspension. The administrator responds that General Statutes § 31-244a permits the agency to consider such evidence.
Section 31-244a provides that "[t]he conduct of hearings and appeals . . . shall be in accordance with rules of procedure prescribed by the board in regulations adopted pursuant to § 31-237 . . . The referees and the board shall not be bound by the ordinary common law or statutory rules of evidence or procedure. They shall make inquiry in such manner, through oral testimony and written and printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the provisions of this chapter."
The regulations indicate the agency's preference for direct testimony in that they provide that "[i]t is the responsibility of each party to present at the hearing before the referee all witnesses, testimony, evidence and argument material to such party's contentions concerning the appeal. Testimony and evidence personally presented at the hearing by individual with actual personal knowledge of the facts in question is preferred, provided the weight to be afforded such testimony and evidence shall be determined by the referee with consideration to the circumstances of each appeal." Regs., Conn. State Agencies § 31-237g-22(a). Further, "[t]he referee may, at any time, indicate on the record that the testimony being presented is not being supplied by a person with actual personal knowledge of the facts in question." Regs., Conn. State Agencies § 31-237g-30. As indicated in the review of the record herein, the agency also indicated its preference for direct evidence in the notice it provided to the parties regarding the hearing before the referee.
The law is clear that procedural due process rights may be violated as the result of infirmities in the conduct of an adversarial proceeding. While it may be true that an unemployment compensation hearing conducted by telephone may be countenanced in certain situations, the court nevertheless concludes that in the unique circumstances of this case, the potential benefits of a telephone hearing were outweighed by the substantial prejudicial effect of said hearing on the plaintiff. The court reaches this conclusion after a careful evaluation of the record. The evidence introduced against the plaintiff consisted largely of hearsay. It is the introduction of nearly exclusively hearsay, in combination with the telephone hearing, that the court concludes violated the plaintiff's procedural due process rights. The plaintiff was denied the opportunity to cross-examine and rebut witnesses who had direct knowledge of the events in question, and the telephone hearing further exacerbated the impact of such evidence on the plaintiff's due process rights.
This conclusion is consistent with the general proposition that "[h]earings before administrative agencies . . . although informal and conducted without regard to the strict rules of evidence, must be conducted so as not to violate the fundamental rules of natural justice . . . Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence." (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 513-13, 778 A.2d 33 (2001).
A party's right to due process, specifically, the right to cross-examine witnesses, dictates that there are some limits on the type of hearsay evidence that may be allowed in administrative hearings. Our courts have recognized this right in the context of hearings before other administrative agencies. As one court noted, "[a]lthough hearings before an administrative agency are informal and are conducted without regard to the strict rules of evidence . . . due process of law requires that the agency cannot violate fundamental rules of natural justice . . . In order to meet this standard, the administrative agency may only rely upon evidence which is probative and reliable . . ." (Citations omitted; internal quotation marks omitted.) Zadroga v. Commissioner of Motor Vehicles, 42 Conn.Sup. 1, 5, 597 A.2d 848 (1991). Further, the Supreme Court has recognized that "[d]ue process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence." Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 249, 470 A.2d 1214 (1984). It is apparent from the record, that the plaintiff was deprived of the ability to cross-examine any witnesses with first-hand knowledge of the facts at issue. The witnesses who were presented did not have first-hand knowledge of the facts at issue, but rather merely repeated claims made by other individuals. The lack of witnesses with first-hand knowledge of the facts at issue was acknowledged at oral argument by the administrator.
In addressing a related issue, in the following cases, judges of the Superior Court sustained appeals and remanded them to the board at least in part because the referee improperly denied the plaintiffs the opportunity to examine or cross-examine certain witnesses. Dubois v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Waterbury, Docket No. CV 05 4008859 (July 3, 2006, Brunetti, J.); Phillips v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Litchfield, Docket No. CV 97 0075003 (February 25, 1998, Pickett, J.T.R.); Foley v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 94 0542297 (May 21, 1996, Sheldon, J.); and Cocove v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Waterbury, Docket No. CV 93 0118875 (October 7, 1994, Pellegrino, J.).
Based on the court's review of the record, and applying the legal principles as described previously herein, the court concludes that in the circumstances of this case, the plaintiff has met his burden of demonstrating that he suffered substantial prejudice as the result of the procedural defects in the conduct of the hearing. The court finds that the combination of a telephone hearing, conducted over objection and without explanation, with the admission of nearly exclusively hearsay, rises to the level of a procedural due process violation. The court finds that hearsay evidence constituted the substantial basis for the denial of unemployment compensation benefits to the plaintiff, and concludes that said circumstance, in combination with a telephone hearing, warrants remedial action by the court.
General Statutes § 31-249b provides in relevant part: "The court may remand the case to the board for proceedings de novo, or for further proceedings on the record, or for such limited purposes as the court may prescribe. The court also may order the board to remand the case to a referee for any further proceedings deemed necessary by the court . . ." Practice Book § 22-9, which mirror this portion of § 31-249b, provides in relevant part: "In addition to rendering judgment on the appeal, the court may order the board to remand the case to a referee for any further proceedings deemed necessary by the court. The court may remand the case to the board for proceedings de novo, or for further proceedings on the record, or for such limited purposes as the court may prescribe . . ." The Appellate Court recently emphasized that § 22-9 provides that, " [i]n addition to rendering judgment on the appeal, the court may order the board to remand the case to a referee for any further proceedings deemed necessary by the court." (Emphasis in original.) Law Offices of Neil Johnson v. Administrator, Unemployment Compensation Act, 101 Conn.App. 782, 791, 924 A.2d 859 (2007).
Therefore, for the reasons stated, the court hereby sustains the plaintiff's appeal, and, under the authority of General Statutes § 31-249b, orders the Board to remand the case to a referee for a new hearing.