Opinion
No. CV 02 0192304
May 23, 2003
MEMORANDUM OF DECISION
Brian R. Hilliker (claimant) applied for unemployment compensation benefits after his employment with his former employer, R R Pool Patio, Inc. (employer), ended on May 2, 2002. The claimant had been working for this employer for about two weeks as a delivery truck driver.
The employer contends that the claimant's employment was terminated for wilful misconduct because he tried to "drive an 11 ft. truck under a 9 ft. bridge." Another reason offered by the employer was that the claimant had created a "scene" while making a delivery to a store in Scarsdale, New York, a few days earlier. The claimant states that he was never advised by his employer of the height of the truck he was driving on the day he was terminated. As to the incident at the other store, the claimant said he might have been a "little testy" but did not create any problems or damage any merchandise.
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 was terminated for "deliberate misconduct in wilful disregard of the employer's interest." Therefore, the claimant's application for unemployment compensation benefits was denied.
In accordance with General Statutes §§ 31-241 and 31-237j, the claimant 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) the overpass bridge in question was clearly marked as having a height or clearance of nine feet and six inches; (2) the visor of the truck that the claimant was driving had a notation of "11.6;" and (3) the claimant's behavior and language at the Scarsdale store caused a customer to leave the premises.
The appeals referee concluded in a decision dated July 29, 2002 that the claimant in attempting to drive the truck under the bridge had been "inattentive and neglectful of his job duties, and . . . this behavior evinces wilful misconduct." The referee also concluded that based on legal precedent "[w]ilful misconduct will be found . . . where the individual was deliberately inattentive to or neglectful of his job duties." Therefore, the referee affirmed the administrator's decision denying unemployment compensation benefits to the claimant.
In accordance with General Statutes § 31-249, the claimant appealed this decision to the employment security board of review (board). The board reviewed the record, including a tape recording of the hearing before the appeals referee, and on August 20, 2002 concluded that the employer had established and proved that the claimant had acted "with wilful misconduct in the course of the employment." The appeals referee's decision was affirmed and the claimant was denied unemployment compensation benefits. The claimant's motion for review was denied by the board, which reiterated its conclusion that the claimant was responsible for determining the height of his truck and had failed to do so.
The claimant, referred to hereafter as the plaintiff, appeals to this court pursuant to General Statutes § 31-249b. The board filed a return of record, and a hearing was held on January 28, 2003.
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 "wilful misconduct in the course of the individual's employment." "Wilful misconduct" is defined as "deliberate misconduct in wilful 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.
In addition to the board's conclusion that the claimant had engaged in deliberate misconduct in willful disregard of the employer's interest, as described in Section 31-236-26a of the regulations, there are two other reasons why the court affirms the decision of the board in this particular case. The first involves Practice Book § 22-4, which 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, 106-07, 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.
The second reason is the axiom that "[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." Finkenstein v. Administrator, 192 Conn. 104, 112, 470 A.2d 1196 (1984).
In conclusion, the court finds on the basis of the certified record that the board was justified in finding that the plaintiff engaged in wilful misconduct and was not entitled to unemployment benefits. Therefore, the defendant's motion (#101) for judgment dated January 3, 2003, is granted and the plaintiff's appeal is dismissed.
So Ordered.
Dated at Stamford, Connecticut, this 23rd day of May 2003.
William B. Lewis, Judge