Opinion
No. CV 02 0190813
June 27, 2003
MEMORANDUM OF DECISION
Michael S. Lombardo (claimant) applied for unemployment compensation benefits after his employment with the Darien Board of Education (employer) was terminated by the employer on December 12, 2001. The claimant had been working for this employer for over seven years as a custodian. The employer contends that the claimant's employment was terminated for willful misconduct because he was argumentative and insubordinate.
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 willful misconduct, including ripping up a warning letter in the face of his supervisor.
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 willful misconduct. The appeals referee made the following factual findings: (1) the claimant was switched from the central office of the employer to the Darien High School which caused his work hours to change to 11:00 a.m. to 7:00 p.m. and he told the head custodian that he did not have time to and would not wet mop the entire school cafeteria as directed; (2) the facilities manager then gave the claimant a written warning on December 11, 2001, which was the first warning he had received, about his failure to follow the head custodian's direct orders about mopping, and the claimant became angry and tore up the warning in the presence of said manager; (3) a "pre-termination" hearing was scheduled for December 12, 2001, because of the claimant's insubordination, his "overall performance record" and the falsification of his application for employment when he denied that he had a police record; and (4) the claimant and his union representative attended the hearing but the claimant abruptly walked out of the meeting CT Page 7547-bc despite the request that he remain in attendance.
The appeals referee concluded in a decision dated April 12, 2002, that: (1) the falsification of the employment record was irrelevant because the employer knew about the police record and did nothing about it for a number of years; and (2) the claimant had engaged in intentional and deliberate willful misconduct based on his "conscious indifference to the duty owed to the employer." Therefore, the referee affirmed the administrator's decision denying unemployment compensation benefits to the claimant and denied his appeal.
The employer 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 July 9, 2002, agreed with the factual determinations made by the referee, including the determination that the claimant "did not have good cause for his refusal [mopping the cafeteria floor] or his insubordinate and disrespectful response to the warning."
The board concluded that the employer had established and proved that the claimant's insubordination constituted wilful misconduct. The appeals referee's decision was affirmed and the claimant was denied unemployment compensation benefits.
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 March 15, 2003. The plaintiff contends in his appeal that one act of misconduct is not willful conduct, that he only received one warning and that his constitutional rights to a fair hearing were violated.
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). CT Page 7547-bd
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 CT Page 7547-bg 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 employers 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 CT Page 7547-bh interest.
The plaintiff refused to wet mop the entire cafeteria as directed by his supervisor. He tore up the written warning right in the face of the facilities manager. He walked out of his pretermination hearing. The CT Page 7547-be board's determination that this insubordination rose to the level of willful 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 reason 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, 106-07, 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 plaintiff also argues that he did not receive sufficient notice of the pretermination hearing, what the purpose of the meeting was, that he had a right to a union representative and the opportunity to rebut the employer's charges. The only issue before the appeals referee, the board and this court is whether the employer demonstrated that the plaintiff was terminated for insubordination which constituted willful misconduct within the scope of General Statutes § 31-236 (a) (2) (B). In other words, the sole issue is whether the plaintiff is entitled to unemployment compensation benefits, not whether the employer violated his rights in the conduct of its pretermination hearing. That may be a proper subject for some other forum but cannot be the basis of an appeal within the unemployment compensation system or to this court.
In conclusion, the court finds that for the reasons noted the board was justified in finding that the plaintiff engaged in willful misconduct and was not entitled to unemployment benefits. Therefore, the named defendant's motion (#101) for judgment dated September 16, 2002, is granted and the plaintiff's appeal is dismissed.
So Ordered.
Dated at Stamford, Connecticut, this 27th day of June 2003. CT Page 7547-bf
William B. Lewis, Judge