Opinion
No. CV 02-0079962
August 20, 2003
MEMORANDUM OF DECISION
In this matter the plaintiff, Elizabeth Jean, appeals from the decision of the State of Connecticut, Department of Labor, Employment Security Appeals Division, Board of Review adopting the referee's findings of fact, affirming the decision of the referee and finding her disqualified from receiving unemployment compensation benefits effective May 12, 2002 because she had been discharged for wilful misconduct in the course of her employment. In her appeal, the plaintiff disputes certain facts found by the Board and asks that those facts be reviewed and that upon such a review, requests that she be found not to have engaged in any wilful misconduct. The appeal was heard by the court on April 26, 2003. The defendant submitted a memorandum of law, the plaintiff did not, and both parties presented oral argument.
Appeals from the Board's decisions to the Superior Court are allowed pursuant to General Statutes § 31-249b. That statute states: "At any time before the board's decision has become final, any party, including the administrator, may appeal to the superior court for the judicial district of Hartford or for the judicial district wherein the appellant resides. Any or all parties similarly situated may join in one appeal. In such judicial proceeding the original and five copies of a petition, which shall state the grounds on which a review is sought, shall be filed in the office of the board. The chairman of the board shall, within the third business day thereafter, cause the original petition or petitions to be mailed to the clerk of the Superior Court and copy or copies thereof to the administrator and to each other party to the proceeding in which such appeal was taken; and said clerk shall docket such appeal as returned to the next return day after the receipt of such petition or petitions. In all cases, the board shall certify the record to the court. The record shall consist of the notice of appeal to the referee and the board, the notices of hearing before them, the referee's findings of fact and decision, the findings and decision of the board, all documents admitted into evidence before the referee and the board or both and all other evidentiary material accepted by them. Upon request of the court, the board shall (1) in cases in which its decision was rendered on the record of such hearing before the referee, prepare and verify to the court a transcript of such hearing before the referee; and (2) in cases in which its decision was rendered on the record of its own evidentiary hearing, provide and verify to the court a transcript of such hearing of the board. 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 in turn provides: "(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 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 . . ."
Thus, the scope of the court's review with regard to the issues presented in this appeal is very limited. "`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 facts nor hear evidence.' (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, 238 Conn. 273, 276, 679 A.2d 347 (1996). The Superior Court, therefore, `is bound by the findings of subordinate facts and the reasonable conclusions of fact made by the appeals referee.' (Internal quotation marks omitted.) Westport Development Mfg. Co. v. Administrator, 9 Conn. App. 189, 190, 517 A.2d 1050 (1986)." Latina v. Administrator, Unemployment Comp. Act, 54 Conn. App. 154, 159 (1999).
The decision of the Board of Review, including its decision on the plaintiff's motion to reopen, reveals that the Board found the following facts. The plaintiff was employed by Windham Community Memorial Hospital from July 13, 1998 to May 17, 2002. The primary fund-raiser for the hospital is a golf tournament, that the claimant worked on, which was scheduled for May 10, 2002. In April 2002, the plaintiff's immediate supervisor advised her that she was expected to attend the hospital's golf tournament. Several times on May 9, 2002, the supervisor reiterated that he expected the plaintiff to attend the tournament the next day. She failed to report to the tournament. The Board found that the plaintiff was discharged from her employment for wilful misconduct. Pursuant to General Statutes § 31-236 (a)(2)(B): "(a) An individual shall be ineligible for benefits: . . . (2) . . . (B) if, in the opinion of the administrator, the individual has been discharged or suspended for . . . wilful misconduct in the course of the individual's employment . . ." Therefore the Board found that the plaintiff was disqualified from receiving unemployment compensation benefits.
"In appeals of this nature, `the Superior Court does not try the matter de novo. It is not its function to adjudicate questions of fact. Nor may it substitute its own conclusions for those of the [board].' Guevara v. Administrator, 172 Conn. 492, 495, 374 A.2d 1101 (1977). Rather, it is the function of the court to determine, on the record, `whether there is a logical and rational basis for the decision of the [board] or whether, in the light of the evidence, [the board] has acted illegally or in abuse of [its] discretion.' Taminski v. Administrator, 168 Conn. 324, 326, 362 A.2d 868 (1975)." Calnan v. Administrator, 43 Conn. App. 779, 784-85 (1996).
Thus this court cannot review the evidence and make its own determination of facts or judgments regarding the credibility of witnesses or what conclusions should be reached from the evidence, those are matters reserved to the Board. Calnan v. Administrator, 43 Conn. App. 779, 785 (1996). The court may review the findings of the Board but only where a motion to correct has been filed with the Board pursuant to Practice Book § 22-4 within two weeks of the filing of the record in court. Such was not done in this case. Since the plaintiff failed to file a motion to correct the Board's findings the plaintiff cannot challenge those findings on appeal. Chavez v. Administrator, Unemployment Comp. Act, 44 Conn. App. 105, 106 (1997). Consequently, the court cannot review the plaintiff's claims that certain findings of the Board are incorrect or untrue. Those findings are, as listed in her appeal, that: 1) "The claimant was initially instructed to attend the May 10, 2002 tournament in April 2002"; 2) "When the claimant replied that the brakes on her vehicle needed repair, the development officer directed the claimant to arrange for alternative transportation . . ."; 3) "The claimant did not arrange for alternative transportation . . ."; and 4) "The development officer was under no obligation to provide the claimant with a company vehicle." All these claims involve factual issues which were determined by the Board based on the evidence before it. The court cannot review the evidence itself and determine whom to believe, those are issues for the Board to decide. The court cannot retry the case in the context of this appeal. "It is axiomatic that the power of the trial court in appeals of this kind is very limited: `[T]he Superior Court does not try the matter de novo; it is not its function to adjudicate questions of fact, nor may it substitute its own conclusions for those of the board. Guevara v. Administrator, 172 Conn. 492, 495, 374 A.2d 1101.'" Johnson v. Administrator, 3 Conn. App. 264, 267 (1985).
The court can, however, determine whether the Board correctly applied the law to the facts the Board found. "`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.' (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, supra, 276. Moreover, we note that `[a]s a general rule, [t]he application of statutory criteria to determine a claimants 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.' (Internal quotation marks omitted.) United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 386, 551 A.2d 724 (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 wilful misconduct.' (Citation omitted.) Id., 388." Latina v. Administrator, Unemployment Comp. Act, 54 Conn. App. 154, 159-60 (1999).
General Statutes § 31-236 (a)(2)(B) provides that: "(a) An individual shall be ineligible for benefits: . . . (2) . . . (B) if, in the opinion of the administrator, the individual has been discharged or suspended for . . . wilful misconduct in the course of the individual's employment . . ." Subsection (a) (16) of that statute further provides that: "For purposes of subparagraph (B) of subdivision (2) of this subsection, `wilful misconduct' means 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, provided such violation is not a result of the employee's incompetence . . ." Regulations of the Department of Labor further define the parameters of the statutory disqualification. Section 31-236-26 of the regulations states: "To find that any act or omission is wilful misconduct in the course of employment, as defined in section 31-236-26c, the Administrator must find that: (1) the individual committed deliberate misconduct in wilful disregard of the employer's interest, as defined in section 31-236-26a; or (2) the individual committed a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not a result of the employee's incompetence, as defined in section 31-236-26b . . ." Section 31-236-26a states: "In order to establish that an individual was discharged or suspended for deliberate misconduct in wilful 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 employee. (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 act or omission. (c) Wilful Disregard of the Employer's Interest. To find that deliberate misconduct is in wilful disregard of the employers 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 courts have also interpreted the statute. In Bailey v. Administrator, 3 Conn. App. 494, 495 (1985), the court stated: "Pursuant to General Statutes 31-236 (2)(B), an individual is ineligible for unemployment compensation benefits if he is discharged for repeated wilful misconduct in the course of his employment. In this context, `wilful misconduct' refers to conduct evincing a wilful disregard of an employers interest such as deliberate violations of the employer's procedures or a disregard of expected standards of behavior. Hannon v. Administrator, 29 Conn. Sup. 14, 17, 269 A.2d 80 (1970); see also DeMilo v. West Haven, 189 Conn. 671, 678, 458 A.2d 362 (1983). Wilful misconduct includes deliberate disobedience or the intentional violation of a known rule. A.C. Gilbert Co. v. Kordorsky, 134 Conn. 209, 211-12, 56 A.2d 169 (1947); Bigelow Co. v. Waselik, 133 Conn. 304, 308, 50 A.2d 769 (1946)."
The facts here as found by the Board disclose that the plaintiff was directed in April 2002 to attend the golf tournament scheduled for May 10, 2002. Several times on May 9th she was reminded that she was to attend the tournament. She failed to do so but instead reported to her office in the hospital. Despite the plaintiff's claim that she lacked transportation to the tournament, the Board found that she made no attempt to get transportation to the tournament. Although the plaintiff argues that the hospital was required to provide her with a vehicle, the Board found that the development officer was under no obligation to provide her with a company vehicle. Viewing these facts in light of the law, the court cannot conclude that the Board's action, determining the plaintiff ineligible for unemployment compensation benefits because she had engaged in wilful misconduct within the meaning of the statute, was unreasonable, arbitrary, illegal or an abuse of discretion.
The appeal is dismissed.
Jane S. Scholl, J.