Opinion
No. CV03-0482963S
August 13, 2008
MEMORANDUM OF DECISION RE APPLICATIONS TO PRESENT ADDITIONAL TESTIMONY
(1)
In this case the claimant for unemployment benefits was terminated from employment on July 11, 2002. On July 20, 2002 an Administrator under the Unemployment Compensation Act ruled Mr. Crebase eligible for benefits and decided he was discharged for reasons other than wilful misconduct. The employer filed a timely appeal on August 15, 2002 and an Appeals Referee heard this appeal on three dates, January 17, 2003, February 21, 2003 and March 28, 2003. On May 19, 2003, the Appeals Referee reversed the Administrator's award of unemployment benefits and sustained the employer's appeal. Benefits were denied effective July 7, 2002. In effect the Appeals Referee held that the claimant was discharged for wilful misconduct and that the employer met its burden of proving wilful misconduct under Section 31-236(a)(2)(B) of the General Statutes.
Mr. Crebase then filed a timely appeal of the referee's decision to the Board of Review on May 30, 2003. On August 29, 2003 the Board affirmed the referee's decision and dismissed the claimant's appeal. On September 30, 2003 Mr. Crebase appealed the Board's decision to the Superior Court. During the foregoing proceedings the claimant was self-represented.
On November 1, 2006 counsel filed an appearance on behalf of Mr. Crebase. Apparently independently of these proceedings on Mr. Crebase's behalf, counsel had filed a complaint with the Commission on Human Rights and Opportunities regarding Mr. Crebase's discharge and the reasons for it. On July 12, 2006 Human Rights Referee Fitzgerald issued a decision and ruled Mr. Crebase was in fact terminated by the employer for age, gender and health reasons and he was not terminated for the reasons offered by Proctor Gamble — falsification of information. The ruling also said the pretermination interview with Crebase was designed in such a way as to preclude him from being able to meaningfully respond to the employer's alleged concerns.
(2)
On October 26, 2006 counsel for Crebase in this action filed an "Application for Leave to Present Additional Evidence." He requested that the decision of the Human Rights Referee be presented as "additional evidence" in the present appeal from denial of benefits and also asked the 1,461 pages of transcript of the CHRO hearings be made part of the record in this case. At the hearing before the CHRO, Mr. Crebase and his wife testified as well as several Proctor and Gamble employees and a doctor who treated Mr. Crebase. At argument, the request to add the transcript to the record was withdrawn.
The application now before the court argues that "the ruling of an Administrative Judge of the State of Connecticut on the very issues in this case cannot be omitted from consideration (in this) appeal."
As to the additional evidence sought to be made part of this record, an interesting argument is made:
. . . thus evidence was not presented before the Employment Security Division — Board of Review, as it had not yet been taken, and because the nature of the inquiry of the (Board) is inquisitorial in nature, not capable of reaching truth as can a sustained cross-examination.
In effect the claimant is asking the court to reopen the evidence and consider that additional evidence in this appeal when it is heard before the trial court. Section 22-9 of the Practice Book specifically bars this. It says in relevant part as to appeals from unemployment compensation decisions:
§ 22-9 Function of the Court
(a) 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 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.
Section 22-4 allows for the filing of a motion to correct which would seem to permit the claimant to file with the Board a motion to correct its finding and "with it such portions of the evidence as he or she deems relevant and material to the corrections asked for . . ." This would include the transcript or portions thereof or any other evidence introduced at the hearing level but not certified to the court by the Board. Furthermore ancient case law holds that the trial court in one of these unemployment cases can "require the whole or any part of the transcript of evidence to be certified up, and make it part of the record, whenever it appears necessary to do so in order to protect the substantial rights of parties not represented by counsel, but ordinarily no part of the evidence before the (compensation) commissioner should be certified to the Superior Court unless the reasons of appeal ask for correction or admission of some specific finding as to a subsidiary fact or the addition of a material fact not found (court's emphasis)." Rainey v. Tunnel Coal Co., 93 Conn. 90, 93 (1918).
Section 22-1(c) adopts Rainey's position permitting the judge, on its own motion, to order the transcript and add it to the record although it expands Rainey in that the court can make such an order even when the claimant is represented by counsel.
The point is that the foregoing Practice Book provisions and a case like Rainey do not permit additions to the record of evidence not presented to the referee or Board. There is no provision in the statutes or Practice Book analogous to Section 8-8(k) in the area of zoning which allow under certain circumstances "additions to the contents of the record (if) for example, "(2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal."
Why this should be so given the ameliorative purposes of the unemployment statutory scheme and the fact that many unrepresented and by definition financially suffering individuals before these referees and boards is unclear to the court. But the court is bound by the Practice Book and statutory scheme.
(3)
As noted, the application for additional evidence does say the inquiry by the Employment Security Appeals Division — Board of Review "is inquisitorial by nature and not capable of reaching truth as can be a sustained by a cross-examination." But no where in the application itself or at oral argument did counsel for the claimant further define what was meant by inquisitorial.
The court has reviewed the record and notes that the decision of the referee indicates the claimant appeared himself along with another witness. Proctor and Gamble's resource manager and operations manager only participated by phone, which would certainly affect the right to cross-examine. The claimant filed a detailed criticism of the referee's decision and noted various items he requested from the employer were not supplied and does articulate in what way these items would have advanced his disability claim at one point. Also he did submit a statement to the referee indicating his psychiatric condition and treatment.
From documents in the certified record apparently sent to the claimant, he was notified to bring any witnesses he felt necessary to the hearing, he brought one; he was told he could ask for a postponement of the hearing in writing or by phone. He was told of the availability of a video which he could review to prepare for the hearing and which shows "what a referee hearing is like."
The administrator's brief points to various regulations establishing a claimant's right to cross-examination, the right to testify and call witnesses and the right to permit parties to request the Board to subpoena witnesses and physical evidence.
But Section 31-273g-54 does not indicate that a subpoena request can be made before and in contemplation of the hearing before the referee and many, if not most of these cases in large part involve Board review of a referee's decision.
The foregoing may go to the common-law right of fundamental fairness in these hearings or some variation of a procedural due process argument which can be raised on appeal but none of this permits the claimant to bypass the necessity of prevailing on such an argument at the hearing of the appeal by introducing into this record the independent findings of a separate state agency which had nothing to do with the record established in this case and which the court will be confined to in addressing the current appeal.
In other words there is a disconnect between any argument about the "inquisitorial" nature of the hearings before the referee and/or Board and the limitation on cross-examination and the present request that the CHRO decision be introduced into this record.
Under Section 22-9 the court can order the Board to remand the case for further proceedings deemed necessary by the court but the appropriate time to do that, if the time arrives, is after full briefing of this matter and argument before the judge to whom this case is assigned for a hearing, see generally on power to remand the only three cases the court could find: Law Offices of Johnson v. Administrator, 101 Conn.App. 782, 791 (2007); City of New Britain v. Administrator, 2006 Ct.Sup. 11795 (Shaban, J., 2006); Davis v. Administator, 2005 Ct.Sup. 1914 (Nadeau, J.) — all of which are not directly on point but recognize the right to remand. But that will present additional problems that must be resolved. If the case is remanded does the CHRO's 78-page decision come before the referee which refers to testimony of witnesses never heard on this appeal? On remand would the referee hear the witnesses who testified before the CHRO, other witnesses or evidence? What exactly is the nature of the remand?
(4)
Also on February 21, 2008 plaintiff filed a "supplementary application" to also present as additional evidence a settlement agreement resolving the matter before the CHRO; the agreement was between the CHRO, Crebase, and Procter Gamble and resolved the latter's appeal from the CHRO referee's decision.
The plaintiff claims: "This evidence is most definitely material to the issues in this case (present appeal from Administrator of Unemployment Compensation Act) as it contains the resolution of the issues among all parties thereto, including the State of Connecticut, acting by and through its agency, the CHRO." Estoppel is raised as an issue. The CHRO's decision ordered Procter and Gamble to reimburse the State for the funds at issue in this case; i.e., the compensation originally paid to Crebase before the referee's decision. In the settlement agreement the State waived its right to go after that sum to enable Crebase to obtain the benefit of the settlement — "having waived that right, it cannot now come back to (Crebase) and declare that (Crebase) for whose benefit it waived its rights, should now pay that amount to the State."
(a)
The court would rely on its initial discussion to indicate that this settlement agreement which was signed in April of 2007 apparently cannot be considered by this court on an appeal that concerns eligibility for benefits. The Superior Court on appeal in such a case can only consider evidence presented to the referee and Board; even if it were to hold that it can consider in an appropriate case evidence not certified to the court but actually presented, case law is clear that it cannot hear additional evidence.
(b) CT Page 13491
But the plaintiff argues, in effect, that the State, under the unique facts of this case, cannot rely on this characterization of the evidence the court can hear in cases of this type and should be estopped from so doing.Certainly estoppel can apply against the State. In Santiago v. State, 261 Conn. 533, 543 (2002), the court said, "Typically, non-compliance with a mandatory statutory provision may be waived, either explicitly or implicitly, by the parties . . . a party may relinquish its right to demand strict adherence to a mandatory statutory provision by virtue of its own failure to enforce that right." Santiago cited an earlier case, Stewart v. Tunxis Service Center, 237 Conn. 71, 80-81 (1996), which said, "Waiver does not have to be express but may consist of acts or conduct from which waiver may be implied . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so."
But to say that the State waived any rights in this action by its participation in a settlement agreement which, according to the plaintiff, it participated in to help enable the plaintiff to obtain the benefit of the settlement with Proctor and Gamble, a private party, is hardly self-evident. Stewart cites Hensley v. Commissioner of Transportation, 211 Conn. 173 (1989), from which it derived its quote, but Hensley, after the quote, immediately states "waiver is a question of fact for the trier" — "waiver is a factual issue." The Pandora's Box of further evidence that would have to be opened surrounding the settlement would be a far departure from statutory provisions and Practice Book sections governing the ambit of a court's appropriate review in these unemployment compensation cases.
(b)
Also as the defendant's April 22, 2008 brief argues, "although sometimes the ruling of ineligibility, when final, establishes that benefits already paid were not earned, there is a separate set of proceedings that addresses the overpayment issue." The defendant concedes that "these proceedings allow for the presentation of evidence and argument that the overpayment should be waived" when and if this court determines he was not eligible for benefits, see § 31-273(a) of the General Statutes. The defendant by this statement has certainly waived its right to take a contrary position on this issue at any such separate hearing where Mr. Crebase would have a right to make any equitable argument and even estoppel argument as to the recoupment of the overpaid funds. Also see Oslund v. Administrator, Unemployment Compensation Act, 3 Conn.App. 258 (1985), which states the overpayment issue is a "separate and distinct proceeding from the determination of (the claimant's) ineligibility for benefits," Id., page 260. That being the case, it is difficult to see how estoppel or waiver could even apply on the eligibility question.
In any event, the court denies the applications the plaintiff has made for additions to the record.