Opinion
No. CV 03-0482963
November 12, 2009
MEMORANDUM OF DECISION
The plaintiff, John Crebase, appeals the decision of the Employment Security Board of Review finding him ineligible for unemployment compensation benefits due to his discharge from employment for willful misconduct. On August 31, 2009, the matter was heard by the court at which time, both parties presented their arguments. For the reasons stated herein, the plaintiff's appeal is dismissed.
The following facts as presented in the record are relevant to the resolution of the matter. On July 11, 2002, the plaintiff was discharged from his employment as an account manager with Proctor Gamble Pharmaceuticals and sought unemployment benefits. On July 30, 2002 after a hearing, the Administrator ruled the plaintiff eligible for unemployment compensation benefits effective July 7, 2002, and notified the employer of its chargeability. The Administrator found that the plaintiff was discharged for reasons other than willful misconduct.
The employer timely appealed the Administrator's decision on August 15, 2002, and the matter was heard by the appeals referee on January 17, 2003, February 21, 2003, and March 28, 2003. The plaintiff appeared before the referee with one witness, and the employer's human resource manager and operations manager participated by phone. In a decision dated May 9, 2003, the referee reversed the decision of the Administrator, and ruled the plaintiff ineligible for unemployment compensation benefits. Specifically, the referee found that the plaintiff was discharged for falsifying company documents, which constitutes willful misconduct in the course of employment pursuant to Conn. Gen. Stat. § 31-236(a)(2)(B). The referee concluded that the plaintiff's "repeated failure to follow the employer's directives regarding making calls upon doctors established a pattern whereby the plaintiff reported false information to the employer regarding the calls he made on behalf of the employer." In particular, the referee found that the plaintiff did not properly report calls to doctors on March 25, March 26, March 27, and March 28, 2002, and also on April 8, 2002. The plaintiff, in fact, admitted to the referee that he may have incorrectly recorded his calls because he did not record them at the time he made them. In his decision, the referee noted that the plaintiff suffered from anxiety and panic attacks, and was placed on medication in February 2002. However, the plaintiff never informed the employer of that fact and did not offer medical evidence to show that his failure to meet the employer's directives would be excused by his medical condition. The referee further found that the plaintiff's failure to satisfy the employer's standards of performance constitutes willful misconduct because the plaintiff "deliberately disregarded the employer's interests and deliberately disregarded the obligation he owed to his employer to record the information about the calls immediately and to only record a doctor's visit that met the employer's definition of a call." Thus, the referee concluded that the plaintiff's conduct was "attributable to a volitional irresponsiveness to instruction and training."
The plaintiff timely appealed the decision of the appeals referee to the Board of Review on May 30, 2003, claiming that the referee's hearing was unfair and requesting a further evidentiary hearing. The plaintiff also claimed that the employer had not established that he violated any specific rule or policy.
Upon a review of the record, the Board adopted the referee's findings of fact, subject to one minor modification, and issued a decision on August 29, 2003, denying the plaintiff's request for a further evidentiary hearing and affirming the decision of the appeals referee. The board found no support in the record for the plaintiff's contention that he did not receive a fair hearing. The board rejected the plaintiff's claim that his hearing was unfair because he did not receive his personnel file from the employer, finding that the plaintiff had not established the likelihood of the file containing any relevant evidence to the issue on appeal. The board also rejected the plaintiff's contention that the hearing was unfair because he could not cross-examine the witness to his alleged misconduct, finding that the plaintiff did have the opportunity on several occasions to cross-examine the employer's witness. Thus, the board found that the plaintiff "failed to show that the ends of justice required [it] to receive additional evidence or testimony in order to adjudicate the appeal," pursuant to Regs. Conn. St. Ag. § 31-237g-40. The board concurred with the referee that the plaintiff acted in willful disregard of the employer's interests by indicating that he made sales calls to physicians when in fact, he had not. The board recognized that "misconduct may be excused by a [plaintiff's] medical condition provided that the existence of the medical condition, and the nexus between the medical condition and the conduct, is established by expert testimony or evidence," but that the plaintiff had not provided medical documentation to support a finding that he was medically unable to perform his job or that discrepancies in his records resulted from his illness.
The plaintiff then appealed to the Superior Court on September 30, 2003, pursuant to Conn. Gen. Stat. § 31-249b and Conn. Prac. Book § 22-9.
Independent of the aforementioned proceedings, the plaintiff filed a complaint with the Commission on Human Rights and Opportunities ("CHRO") regarding his discharge. In a decision dated July 12, 2006, the Human Rights Referee ruled that the plaintiff was terminated by his employer for age, gender and health reasons, and that he was not terminated for falsification of information. The referee also ruled that the pre-termination interview the plaintiff had with his employer, was designed in such a way as to preclude the plaintiff from meaningfully responding to the employer's alleged concerns.
On October 26, 2006, the plaintiff filed an Application for Leave to Present Additional Evidence with the court, requesting that the decision of the Human Rights Referee and the transcript of the hearings before the CHRO be presented as additional evidence in his appeal to the Superior Court from the denial of unemployment compensation benefits. On February 21, 2008, the plaintiff filed a supplementary application to also present as additional evidence, a settlement agreement between him, the CHRO and the employer. The matter was argued before the court on April 28, 2008, and at that time, the request to add the transcript as additional evidence was withdrawn.
The court, Corradino, J., denied the plaintiff's applications to present additional evidence in a decision dated August 13, 2008. The court found that the plaintiff was, in effect, asking the court to reopen the evidence which section 22-9 of the Practice Book specifically bars. The court noted that the proper vehicle by which to challenge the findings of the board is a Motion for Correction pursuant to Practice Book § 22-4. However, absent a motion to correct the findings, the court found that the Practice Book does not permit additions to the record of evidence not presented to the referee or board.
In the present appeal, the plaintiff raises two issues: (1) did the board abuse its discretion in denying the plaintiff's request for an evidentiary hearing; and (2) is the board's decision that the plaintiff was discharged for willful misconduct unreasonable, arbitrary or illegal.
The plaintiff's first claim is that the board abused its discretion in denying his request for an evidentiary hearing. The court's review of such a claim is well-settled. "[A]ppeals from the board to the Superior Court are specifically exempted from governance by General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act. All appeals from the board to the court are controlled by General Statutes § 31-249b." Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. 170, 175 (2009). The board's denial of a request for an evidentiary hearing is analyzed "in the context of the applicable statutes, regulations and notices." Quercia v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New London, Docket No. 4002147 (August 26, 2005, Hurley, J.T.R.) (quoting Norman J. Howe Associates v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Litchfield, Docket No. CV0057031 (August 25, 1993, Pickett, J.)). "Therefore, when reviewing the board's decision on procedural matters, `the reviewing court does not try the matter de novo, but only determines whether the board acted unreasonably, arbitrarily or illegally.'" Id. (quoting Kronberg v. Administrator, Unemployment Compensation Act, 36 Conn.Sup. 210, 211-12 (1980)).
General Statutes § 31-249b provides in relevant part that an appeal to the board from a referee's decision "may be heard on the record of the hearing before the referee or the board may hear additional evidence or testimony provided the board shall determine what evidence shall be heard in the appeal . . . in accordance with the standards and criteria in the regulations adopted pursuant to § 31-237g."
"The criteria as set forth [under the regulations] are clear and fully understandable . . . In essence all that is required, is to furnish to the Board a simple explanation of the reason why a board hearing should be held. The Board must be given some indication as to what is expected to be produced." Cassin v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Haven, Docket No. CV 970397338S (January 29, 1998, Freedman, J.) (quoting Mehta v. Administrator, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 566052 (February 3, 1997, Sullivan, J.). "The decision to conduct a hearing is within the reasonable discretion of the Board. Some reason must be proffered by the [claimant] to enable the Board to evaluate the proffered reason so as to make a decision as to whether the Board is to depart from the usual procedure of determining the matter from the record." Id.
Section 31-237g-40 of the Regulations of Connecticut State Agencies provides in relevant part: "(a) The Board usually decides appeals based on the record established before the referee, and does not generally conduct further hearings to take additional evidence or testimony . . . However, if the Board determines that the ends of justice so require, the Board may order that a further hearing be scheduled before the Board or Referee for such purposes as the Board may direct. Circumstances in which the Board may reach such a determination on any appeal may include, but are not limited to the following: (1) the findings of fact contained in the decision appealed from are silent, incomplete, or erroneous on factual issues material to the review of the case; (2) the existence of substantially complex, significant or unusual issues of fact or law which are material to the review of the case; (3) the procedural conduct of the Referee's hearing appears to have materially denied any party a fair hearing; (4) for good cause shown, evidence or testimony material to the case was not presented at the hearing previously scheduled . . ." Regs. Conn. St. Ag. § 31-237g-40(a).
The regulations further permit the board to "refuse to grant a request for a board hearing from any party who fails to show good cause for such party's failure to introduce the evidence, testimony or oral argument . . . at the hearing previously scheduled." Id. at § 31-237g-40(c).
The plaintiff contends that board's decision not to conduct an evidentiary hearing was in error because the findings of fact contained in the decision of the appeals referee were silent, incomplete and erroneous. See, e.g. Regs. Conn. St. Ag. § 31-237g-40(a)(1). In support of this contention, the plaintiff claims that the referee's findings of fact were in error because the plaintiff was on approved medical leave from April 22, 2002 to July 10, 2002 and not on vacation as the referee stated. However, the referee's minor mischaracterization in the findings of fact of the plaintiff's approved absence from work is not material to the review of this case. Thus, the court is not persuaded that the board's slight amendment to the factual findings casts doubt on the entirety of the findings.
The plaintiff also claims that an evidentiary hearing was warranted because the case presents substantially complex, significant or unusual issues of fact or law, namely the plaintiff's medical condition and the issue of pretext, which he claims are material to review of the case. See, e.g., Regs. Conn. St. Ag. § 31-237g-40(a)(2). However, the plaintiff never offered medical evidence to the referee or the board to show that his failure to follow the employer's directives would be excused by his medical condition. It is within the board's discretion to "refuse to grant a request for a board hearing from any party who fails to show good cause for such party's failure to introduce the evidence . . . at the hearing previously scheduled." Regs. Conn. St. Ag. § 31-237g-40(c). Such is the case here, as the plaintiff has not shown good cause for his failure to introduce medical evidence at the hearings before the referee or the board.
Nonetheless, the plaintiff asserts that good cause has been shown for the introduction of further evidence because the referee failed to consider the issue of discrimination. The plaintiff claims that an inquiry into the issue of discrimination was necessary to evaluate whether the reason for the plaintiff's discharge was pretextual. However, the issue of the introduction of further evidence was heard by the court, Corradino, J., and was decided adversely to the plaintiff. This court will not revisit that finding.
The court notes that the plaintiff does not suggest that the board's decision was in error because the procedural conduct of the referee's hearing appears to have materially denied the plaintiff a fair hearing. See, e.g., Regs. Conn. St. Ag. § 31-237g-40(a)(3). Nevertheless, this issue warrants some consideration due to the plaintiff's argument to the board that his hearing before the referee was unfair because, among other things, he was denied the opportunity to cross-examine the witness to his alleged misconduct. The board, in its decision, recognized that "the evidence as to what was said about the individual doctors by the office staff was hearsay, [but] the [plaintiff] had the opportunity to cross-examine the employer's witness." The board did not comment on the fact that the employer's witness participated in the hearings by phone. However, in the court's decision on the plaintiff's application for leave to present additional evidence, it noted that, "[the employer's] resource manager and operations manager only participated by phone, which would certainly affect the right to cross-examine." Crebase v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Haven, Docket No. CV03-0482963S (August 13, 2008, Corradino, J.) [ 46 Conn. L. Rptr. 169].
The court is not persuaded, however, that any perceived procedural infirmities in this case rise to the level of a procedural due process violation. But cf. Addona v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Haven, Docket No. CV074027797 (December 24, 2008, Vitale, J.) [ 46 Conn. L. Rptr. 848] (finding a violation of the plaintiff's due process rights where the referee's hearing was conducted by phone over the plaintiff's objections and nearly all evidence was hearsay). The regulations provide for telephone hearings before the referee. See Regs. Conn. St. Ag. 31-237g-17. In addition, the record does not reveal any objection by the plaintiff to the employer's resource manager and operations manager participation in the hearings by phone.
The court agrees with the board in this case that the record before it did not show any basis upon which to conduct an evidentiary hearing. Consequently, the court finds that the board's decision not to conduct an evidentiary hearing 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, Unemployment Compensation Act, 43 Conn.App. 779, 785 (1996).
The second issue raised by the plaintiff in this appeal is whether the decision of the board, finding the plaintiff ineligible for unemployment compensation benefits because he was discharged from employment for willful misconduct, was logically and rationally supported by the evidence, and was not unreasonable, arbitrary, illegal or an abuse of the board's discretion. Id.
"To the extent that an administrative appeal, pursuant to General Statues § 31-249(b), 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 facts nor hear evidence." Latina v. Administrator, Unemployment Compensation Act, 54 Conn.App. 154, 159 (1999) (quoting Mattatuck Museum-Mattatuck Historical Society v. Administrator, 238 Conn. 273, 276 (1996)). The Superior Court, therefore, "is bound by the findings of subordinate facts and the reasonable conclusions of fact made by the appeals referee." Id. (quoting Westport Development Mfg. Co. v. Administrator, 9 Conn.App. 189, 190, 517 A.2d 1050 (1986)). "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." Id. (quoting Mattatuck Museum-Mattatuck Historical Society v. Administrator, supra, at 276).
Moreover, our Appellate Court has noted that "[a]s 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." Id. (quoting United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 386 (1988). "[T]he remedial purpose of the Unemployment Compensation Act is to provide relief for its primary beneficiaries, those who are unemployed without fault or for cause . . . but this beneficent remedial purpose does not support the grant of benefits to an employee guilty of willful misconduct." Id. at 160.
General Statutes § 31-236(a)(2)(B) provides in pertinent part that one is ineligible for benefits if 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." Conn. Gen. Stat. § 31-236(a)(16).
The crux of the plaintiff's argument is that he was terminated for reasons other than willful misconduct, in particular that his termination was a pretext for employment discrimination on the basis of age, gender, and medical condition. In so arguing, the plaintiff is essentially challenging the findings of the board, which, absent a motion to correct the board's findings, he is precluded from doing. Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. at 175.
After a review of the record, the board found that the plaintiff was discharged for inaccurately recording sales calls allegedly made to doctors, which the plaintiff, himself admitted to doing at the referee's hearing. Therefore, the board had no occasion to apply discrimination law. The plaintiff argues in his brief before the court that he provided the appeal referee and the board of review with his CHRO complaint, which, he claims, the appeal referee and board of review failed to consider. However, "since unemployment compensation benefits are to be paid as soon as possible to those eligible, the determination of eligibility cannot depend upon proceedings outside of the unemployment compensation program." 1977 Conn. Op. Atty. Genl. Dated 8/12/77, published 39 Conn. L. J. 15, 10/11/77.
Consequently, after careful review of the certified record, the court agrees with the board that the employer properly discharged the plaintiff for willful misconduct in the course of employment. The court finds that the decision of the board was logically and rationally supported by the evidence. The board did not act unreasonably, arbitrarily, illegally, or in abuse of its discretion in finding the existence of willful misconduct due to the plaintiff's failure to follow the employer's directives.
For all the foregoing reasons, the plaintiff's appeal is DISMISSED.