Opinion
No. CV 02 0193037
October 24, 2003
MEMORANDUM OF DECISION
Garcia A. Cesar (claimant) applied for unemployment compensation benefits after his employment with Tuscan Oven of Norwalk, Inc. (employer) was terminated by the employer on March 1, 2002. The claimant had been working for this employer for about five months as a waiter. The employer contends that the claimant's employment was terminated for wilful misconduct because he delivered complimentary wine and dessert to a customer without first obtaining a ticket to make such 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 had not engaged in willful misconduct, and hence was eligible for benefits.
In accordance with General Statutes §§ 31-241 and 31-237j, the employer 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 wilful misconduct. The appeals referee made the following factual findings: (1) on February 22, 2002, the night before he was fired, the claimant received an order from a customer for a certain type of port wine; (2) the restaurant did not have this kind of port, so the claimant and the bartender, who was also subsequently fired, sent the customer a cheaper and lesser brand of port; (3) the customer immediately recognized the difference in quality and demanded to see the bottle, but was advised by the claimant that said bottle was "broken;" (4) the claimant then delivered to the customer a dessert and glass of wine and told the customer that they were "on the house," which was overheard by the manager and which led to the claimant's termination of employment; and (5) the employer's policy, which the plaintiff knew about, was that all food and drink required an order ticket before delivery to a customer, and that only the owner or managers could give a customer complimentary or free food or liquor.
The appeals referee concluded in a decision dated August 13, 2002, that the claimant had been discharged for wilful misconduct in the course of employment in that he violated a reasonable policy which had been reasonably and uniformly enforced in the past. Therefore, the referee reversed the administrator's decision granting unemployment compensation benefits to the claimant and sustained the employer's appeal.
The appeals referee referred to Section 31-236-26b of the Regulations of Connecticut State Agencies, which provides that to terminate employment for a knowing violation of a reasonable and uniformly enforced policy of an employer, the following must all be found to exist.
CT Page 11792 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 not 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 claimant 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 October 16, 2002, agreed with the findings made by the referee, including the determination that the claimant was discharged "for wilful misconduct in the course of the employment."
The board concluded that the employer had established and proved that the claimant's delivery of liquor and food without a proper ticket constituted wilful misconduct because the claimant testified before the referee that: "he was aware of the employer's policy that the wait staff could not serve food or beverages without a ticket," but nevertheless did precisely that by unilaterally deciding to give the customer a complimentary drink and dessert. The appeals referee's decision was affirmed and the claimant was denied unemployment compensation benefits. The claimant then filed a petition for review which claimed that he had difficulties with the English language and was thereby prevented from explaining the circumstances of his discharge. The board indicated that the tape recording of the hearing before the appeals referee had been reviewed and that the claimant was "articulate" in English. The petition for review was denied.
The claimant, referred to hereafter as the plaintiff, appeals to this court pursuant to General Statutes § 31-249b. The board filed a certified return of record, and a hearing was held on July 8, 2003. The plaintiff contends in his appeal that he does not agree with the decision 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 Section 22-9 of the Connecticut Practice Book."
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).
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 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 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.
The plaintiff served dessert and a drink to a customer without the proper order ticket in clear violation of the employer's policy. The board's determination that this action rose to the level of wilful misconduct is within its province and should not be disturbed because of the axiom set forth in Finkenstein v. Administrator, 192 Conn. 104, 112, 470 A.2d 1196 (1984), to wit, "[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."
Additionally, there is another reasons why the court affirms the decision of the board in this particular case. Practice Book § 22-4 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.
In conclusion, the court finds that for the reasons noted the board was justified in finding that the plaintiff engaged in wilful misconduct and was not entitled to unemployment benefits. Therefore, the named defendant's motion (#101) for judgment dated February 7, 2003, is granted and the plaintiff's appeal is dismissed.
So Ordered.
Dated at Stamford, Connecticut, this 24th day of October 2003.
William B. Lewis, J.T.R.