Opinion
No. 4002147
August 26, 2005
MEMORANDUM OF DECISION
FACTS
The plaintiff, Peter W. Quercia, who has appeared pro se throughout the proceedings, appeals from a decision by the employment security appeals division board of review (board) in which the board determined that he was not entitled to unemployment compensation benefits because he was discharged from his employment with Securitas Security Services USA, Inc. (Securitas) for wilful misconduct. The defendants in the appeal are the administrator of the Unemployment Compensation Act (administrator) and Securitas, although Securitas has not filed an appearance or any pleadings or memoranda. The board has filed a certified copy of the record of the proceedings before the board (record).
According to the record, Securitas employed Quercia as a bus driver from September 16, 2003, through April 30, 2004, and terminated him from his job on May 7, 2004. Quercia filed a claim for unemployment compensation benefits, which Securitas disputed on the ground that it had discharged Quercia for violating its policy prohibiting its drivers from using cellular telephones while on duty. The administrator approved Quercia's application, with the following notation: "No evidence of a knowing violation of workplace rule or wilful misconduct" Securitas appealed this decision to an appeals referee. On September 2, 2004, the employment security division sent the parties a notice informing them of the date, time and location of the hearing before the referee. Attached to the notice were several documents, including an informational page, checklists for claimants and employers and a notice offering to send the parties, upon their request, a free video entitled "Preparing For an Appeal Hearing."
On September 14, 2004, the referee held a hearing de novo on Securitas' appeal. Quercia did not appear at the hearing. Diana Oldroyd, an account CT Page 11768-gv manager, and Michele Dube, manager of human resources, appeared for Securitas. The referee concluded that Securitas discharged Quercia for a knowing violation of its rules, that this constituted wilful misconduct in the course of employment; and that he was therefore disqualified from receiving unemployment compensation benefits. Accordingly, the referee reversed the administrator's decision and sustained Securitas' appeal.
On September 20, 2004, Quercia filed a motion to open in which he explained that he had not received notification of the time, date and location of the hearing, and asked that the matter be opened to allow him the opportunity to respond to Securitas' appeal. On September 21, 2004, the appeals referee withdrew his decision and granted Quercia's motion to open, on the condition that, at the second hearing, Quercia show good cause for his failure to appear at the initial hearing. On September 24, 2004, the employment security division sent both parties a notice of the time, date and location for the second hearing. The same documents that were attached to the first notice were also attached to the second one.
The referee held the second hearing de novo on October 13, 2004. Quercia appeared on his own behalf, and Dube appeared on behalf of Securitas. On October 14, 2004, the referee issued his decision. Initially, the referee found that Quercia had not received proper notice of the initial hearing and that "the ends of justice require that the Referee reopen the case." The referee made additional findings of fact and concluded that Securitas discharged Quercia for a knowing violation of its rule regarding the use of cellular telephones, that this constituted wilful misconduct in the course of his employment, and that he was therefore disqualified from receiving unemployment compensation benefits under General Statutes § 31-236(a)(2)(B). Accordingly, the referee again reversed the administrator's decision and sustained Securitas' appeal.
On October 22, 2004, Quercia filed a motion to reopen the referee's decision on the following grounds: (1) the referee failed to admit and consider certain evidence; (2) he was not aware that he could subpoena witnesses; (3) he did not receive information advising him on how to represent himself at the hearing; and (4) he wanted to question Oldroyd at the hearing, but she did not appear; (5) he was not aware that his signature on a written warning meant that he did not disagree with the contents of the warning and (6) he could prove that Securitas' management was engaged in a concerted effort to terminate his employment, as well as that of other employees, as a cost cutting measure. On October 26, 2004, the appeals referee denied the motion to reopen on the basis that Quercia failed to show good cause for it to do so. Based on a request from Quercia, the referee forwarded the case to the board of review as an CT Page 11768-gw appeal of the referee's decision.
On November 2, 2004, the board sent a notice to the parties informing them that Quercia had filed an appeal and advising them that they could, among other options, request a hearing before the board. On November 5, 2004, Quercia filed a request for a hearing before the board on the following grounds: (1) the referee did not consider Quercia's evidence; (2) he was not able to question Oldroyd because she did not appear at the second hearing; (3) he needed to subpoena documents from Securitas and to subpoena witnesses, including Oldroyd, for testimony, and he never received any information explaining his right to do so; (4) he was not familiar with Securitas' policy regarding written warnings; and (5) he could prove that Securitas had engaged in a concerted effort to terminate particular employees in order to replace them with lower paid employees.
The board reviewed the record, including a tape recording of the hearing before the referee, and on December 10, 2004, issued its decision. Initially, the board denied Quercia's request for an evidentiary hearing because he failed to show that the ends of justice required that the board receive additional evidence, pursuant to § 31-237g-40 of the Regulations of Connecticut Sate Agencies. The board acknowledged that Quercia had not received the notice and information regarding the first hearing before the referee, but noted that he did receive the notice and information as to the second hearing, and that the appeals division mailed a copy of an informational video to Quercia. The information supplied to Quercia included advice that he bring witnesses to the hearing, and the video explained the process he should follow if he needed a subpoena. In addition, the board noted that although Quercia spoke to the staff at the appeals division office several times, he never mentioned that he was having problems or needed assistance in securing witnesses or documents, nor did he ask to subpoena witnesses at the October 13, 2004 hearing before the referee. Finally, the board concluded that the evidence that Quercia sought to secure by way of subpoenas would not alter the outcome of the case in that the referee's decision was supported by Quercia's own testimony at the hearing.
Regarding the documents that Quercia claimed that the referee refused to enter into the record, the board noted they contained statements that Quercia thought would establish that he was a good employee. Although the board opined that "[i]t would have been better practice for the referee to have entered the statements into the record and accord them the evidential weight they deserved," it concluded that the referee's failure to do so was harmless in that Quercia's own testimony supported the referee's findings and conclusion. CT Page 11768-gx
As to the merits of the appeal, the board concurred in the referee's conclusion that Securitas discharged Quercia for violating a reasonable and uniformly enforced policy, and that this constituted wilful misconduct in the course of employment. In so doing, the board adopted the referee's findings of fact and decision, with modifications. The board then affirmed the referee's decision and dismissed Quercia's appeal. Quercia appealed the board's decision to this court. He maintains that he did not engage in wilful misconduct and that he should have been permitted to present additional witnesses and evidence. The administrator filed a memorandum in which he argues that the court should affirm the board's decision and dismiss the appeal. Quercia has elected to rely on the information available in the record and his statement as to the reasons for the appeal.
DISCUSSION
This appeal raises two issues: (1) did the board abuse its discretion in denying Quercia's request for an evidentiary hearing; and (2) is the board's decision that Quercia was discharged for wilful misconduct unreasonable, arbitrary or illegal.
The board's denial of Quercia's request for an evidentiary hearing is analyzed "in the context of the applicable statutes, regulations and notices." Howe v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Litchfield, Docket No. CV ___ 0057031 (August 25, 1993, Pickett, J.). General Statutes § 31-249 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 section 31-237g." Section 31-237g-40 of the Regulations of Connecticut State Agencies sets forth the criteria that applies to a party's application for an evidentiary hearing before the board of review. The regulation provides in relevant part: "(a) The Board usually decides appeals on the basis of 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 a 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 . . . (3) the procedural conduct of the Referee's hearing appears to CT Page 11768-gy 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. State Agencies § 31-237g-40(a). The regulation also allows the board discretion to deny a motion for a hearing in that it provides, "(c)[t]he Board may 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." Regs., Conn. State Agencies § 31-237g-40(c). See Cassin v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Haven, Docket No. CV 97 0397338 (January 28, 1998, Freedman, J.) (decision to conduct hearing within reasonable discretion of board). Therefore, when reviewing the board's decisions on procedural matters, "the reviewing court does not try the matter de novo, but only determines whether the board acted unreasonably, arbitrarily or illegally." Kronberg v. Administrator, Unemployment Compensation Act, 36 Conn.Sup. 210, 211-12, 416 A.2d 186 (1980).
General Statutes § 31-237g empowers the board to "adopt regulations . . . concerning the rules of procedure for the hearing and disposition of appeals . . ."
In this case, the information that Quercia submitted to the board pursuant to his request for a hearing does not provide a basis for finding that the board acted arbitrarily in denying his request for a hearing. As previously detailed, the board determined that Quercia was adequately informed about the procedures for referee hearings. The information that was sent to the parties informed them that it was "vitally important" that witnesses with first-hand knowledge of the case attend the hearing. In addition, according to the board, the videotape that was sent to Quercia explained the process for obtaining a subpoena. In addition, the regulations plainly state that "[i]t is the responsibility of each party to present at the hearing before the Referee all witnesses . . . material to such party's contentions concerning the appeal." Regs., Conn. State Agencies § 31-237g-22(a). Moreover, the regulations expressly provide that "any party may request the Referee to issue a subpoena to compel the attendance at the Referee's hearing of any proposed witness for the purpose of providing testimony or physical evidence, or both. Such a request need not be in writing . . . In the absence of a properly issued subpoena, attendance at a Referee's hearing by any party or other person is not mandatory. Therefore, it is the responsibility of each party which intends or desires to examine or cross-examine any other party or person to request the issuance of a subpoena to insure the attendance of such other party or person at the Referee's . . ." Regs., Conn. State Agencies § 31-237g-21(b).
Although Quercia claimed that he anticipated Oldroyd would be at the hearing, he did not take any steps to assure her presence or that of his other witnesses. Indeed, he did not raise the issue of the possibility of CT Page 11768-hz obtaining subpoenas to the appeals division before the hearing, or to the referee at the hearing, nor did he ask the referee to recess or continue the hearing so that he could do so. Quercia's assertion that he was not provided with adequate information regarding the appeals process, invokes "`[t]he familiar legal maxims, that everyone is presumed to know the law, and that ignorance of the law excuses no one . . .' Atlas Realty Corp. v. House, 123 Conn. 94, 101, 192 a.564 (1937) . . ." (Citations omitted.) Provident Bank v. Lewitt, 84 Conn.App. 204, 209-10, 852 A.2d 852, cert. denied, 271 Conn. 924, 859 A.2d 580 (2004). In addition, although "it is the established policy of Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party . . . [n]evertheless, [a]lthough [the courts] allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Citation omitted; internal quotation marks omitted.) New Haven v. Bonner, 272 Conn. 489, 497-98, 863 A.2d 680 (2004).
Accordingly, Quercia did not establish that he had good cause for failing to present his evidence at the hearing before the referee. Moreover, the board correctly determined that, in as much as Quercia's own testimony established that he had violated his employer's policy, the additional evidence that he sought to present to the board would not alter the outcome of the case. Thus, the record provides adequate support for the board's determination that the ends of justice did not require an additional hearing, and the board did not abuse its discretion in denying Quercia's request. See Aitchison v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Litchfield, Docket No. CV 95 0067140 (July 19, 1995, Pickett, J.). The court affirms the board's decision to deny Quercia's request for an evidentiary hearing.
In his statement of appeal, Quercia argues for the first time, that he was unable to obtain a copy of his personnel file and a copy of the tape recording of the initial hearing before the referee because Securitas and the appeals division, respectively, informed him that they would charge a fee for providing him with copies of these records, and he did not think he should have to pay for this information. Employers are authorized to charge a fee for copying an employee's file under General Statutes § 31-128g. The appeals division is authorized to charge a fee for copying the tape recording of a hearing under § 31-237g-7 of the Regulations of Connecticut State Agencies.
The next question is whether the board's decision that Quercia engaged in wilful misconduct was unreasonable, arbitrary or illegal. As our Supreme Court has stated, "the remedial purpose of the Unemployment Compensation Act is to provide relief for its primary beneficiaries, those who are unemployed without fault or cause . . . but this beneficent remedial purpose does not support the grant of benefits to an employee guilty of wilful misconduct." (Citation omitted.) United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 388, 551 A.2d 724 (1988). See also General Statutes § 31-236(a)(2)(B).
The Supreme Court has also noted that the trial court's role in reviewing unemployment compensation appeals is limited, in that "[t]o the extent that an administrative appeal, pursuant to General Statutes § CT Page 11768-ha 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." (Citation omitted.) United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, supra, 209 Conn. 385-86.
Although Quercia does not dispute that he answered a call on his cellular telephone on April 30, 2004, he argues that his conduct did not constitute wilful misconduct as that term is defined in this context. Thus, he takes issue with the board's application of the law to the facts before it. Where the board adopts and affirms the decision of the referee, with modifications, the court is bound by those findings of subordinate facts and the reasonable factual conclusions made by the appeals referee, as modified by the board. See Lazarcheck v. Administrator, Unemployment Compensation Act, 1 Conn.App. 591, 594, 474 A.2d 465 (1984). Accordingly, the only issue before the court is whether the board's decision that Securitas sustained its burden of proving that it discharged Quercia for wilful misconduct 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, 686 A.2d 134 (1996).
The referee and the board found the following facts: Quercia worked for Securitas as a shuttle bus driver from September 16, 2003, through April 30, 2004. On September 3, 2003, Quercia received Securitas' handbook which includes a provision that drivers may be discharged for using cellular telephones while on duty or while driving a shuttle bus. Securitas' progressive discipline policy allows the company to terminate an employee for any violation of its rules. Quercia signed an acknowledgment form in which he agreed that he was required to read and comply with the employer's rules. Quercia testified that on April 16, 2004, he used his cellular telephone while he was driving a shuttle bus, and that he received a verbal warning from his supervisor for doing so. At that time, he was also advised that he could be discharged for violating this policy. Quercia testified that he also used his cellular telephone while he was transporting passengers on the shuttle bus on April 30, 2004. As he was talking on the telephone, he pulled the bus out CT Page 11768-hb in front of Diana Oldroyd, which caused her to swerve her vehicle to keep from colliding with the bus. Quercia claimed that he had forgotten to turn his telephone off and was only using it briefly to answer a call from his wife. On May 7, 2004, Securitas discharged Quercia for violating its rule against using a cellular telephone while on duty.
The referee and the board determined that Quercia engaged in wilful misconduct in the course of his employment in that he knowingly violated Securitas' rule regarding cellular telephone use. They determined that Securitas had previously warned Quercia that a violation of this rule could result in termination and that there was no evidence that the rule was not reasonable or uniformly enforced. Further, they determined that Securitas reasonably applied the rule in that it followed its progressive discipline policy and that Quercia's explanation for his conduct did not mitigate his failure to adhere to the rule. The board concluded that Securitas acted reasonably in discharging Securitas for his second violation of the same safety rule and that it did not find that Securitas discharged Quercia for another, different reason.
Under General Statutes § 31-236(a)(2)(B), an individual is ineligible for unemployment benefits "if, in the opinion of the administrator, the individual has been discharged . . . for . . . wilful misconduct in the course of the individual's employment . . . General Statutes § 31-236(a)(16) defines "wilful misconduct" "[for purposes of subparagraph (B) of subdivision (2) of this section" 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 provided such violation is not a result of the employee's incompetence . . ." According to our courts, "wilful misconduct" in the context of unemployment compensation appeals "includes deliberate disobedience or the intentional violation of a known rule." Bailey v. Administrator, Unemployment Compensation Act, 3 Conn.App. 494, 495, 490 A.2d 92 (1985). The courts have determined that "wilful misconduct" means "either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such character as to evince a reckless disregard of consequences to himself by him who is guilty of it . . . Mere violation of a rule does not always constitute wilful misconduct. To have that effect the disobedience must have been deliberate, not merely a thoughtless act on the spur of the moment." (Internal quotation marks omitted.) Bigelow Co. v. Waselik, 133 Conn. 304, 308, 50 A.2d 769 (1946). Nevertheless, "it is well established that disregard of the standards of behavior that an employer has the right to expect of his employees, by carelessness or negligence of sufficient degree or frequency to show disregard for the employer's interests or equal culpability, constitutes wilful misconduct." United Parcel CT Page 11768-hc Service, Inc. v. Administrator, Unemployment Compensation Act, supra, 209 Conn. 386-87. Moreover, evidence that the employer has previously issued warnings to the employee for the same conduct is relevant to the issue of whether the employee engaged in wilful misconduct. Latina v. Administrator, Unemployment Compensation Act, 54 Conn.App. 154, 162, 733 A.2d 885 (1999).
As the Appellate Court has stated in discussing the regulations that correspond to the Unemployment Compensation Act, "[v]alid agency regulations have the force of statutes and constitute state law." ARCO Technology, Inc. v. Administrator, Unemployment Compensation Act, 25 Conn.App. 130, 135, 593 A.2d 154 (1991). The regulations that correspond to § 31-236(a) provide in relevant part: "To find that any act or omission is wilful misconduct in the course of employment . . . the Administrator must find that . . . (2) the individual committed a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonable applied provided such violation is not a result of the employee's incompetence . . ." Regs., Conn. State Agencies § 31-236-26. Further, according to the regulations, "[i]n order to establish that an individual was discharged . . . for a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, the Administrator must find all of the following": (1) the employee knew of the rule and that his conduct violated the rule, and he was aware that he engaged in the conduct; (2) the rule was reasonable in that it furthered the employer's lawful business interest; (3) the employer uniformly enforced the rule, in that it treated similarly situated employees in a similar manner when they violated the rule; (4) the employer reasonably applied the rule, in that the action taken by the employer was appropriate in the circumstances and no compelling circumstances prevented the employee from adhering to the rule; and (5) the employee's violation of the rule did not result from his or her incompetence. Regs., Conn. State Agencies § 31-236-26b.
"As a general rule, [t]he application of statutory criteria to determine a claimant's eligibility for unemployment compensation under General Statutes § 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, Unemployment Compensation Act, supra, 209 Conn. 386. This court "does not try the matter de novo . . . Nor may it substitute its own conclusions for those of the [board]." (Internal quotation marks omitted.) Calnan v. Administrator, Unemployment Compensation Act, supra, 43 Conn.App. 784-85.
The board's conclusion that Securitas sustained its burden of proving CT Page 11768-hd that it discharged Quercia for engaging in wilful misconduct in violating Securitas' policy regarding the use of cellular telephones while on duty is logical and rational given the evidence in the record, and was not unreasonable, arbitrary, illegal or an abuse of the board's discretion. Specifically, the record provides evidence of the following. Securitas instituted a rule that prohibited its drivers from using cellular telephones while on duty and while driving shuttle buses. Quercia knowingly violated the rule in that he was provided a copy of it, signed a form in which he agreed to read and comply with Securitas' rules and was previously reprimanded for violating the same rule; his conduct clearly violated the rule; and he was aware that he engaged in such conduct. The record does not contain any evidence that the rule was unreasonable or that Securitas did not enforce the rule in a uniform manner. Securitas reasonably applied the rule in the circumstances given that it discharged Quercia in accordance with its disciplinary policy for his second violation of this safety-related rule and that he offered no evidence that he had a compelling reason that prevented him from adhering to the rule. Finally, the record does not contain any evidence that Securitas discharged Quercia for any other reason.
Accordingly, the court affirms the board's decision and dismisses Quercia's appeal.
D. Michael Hurley, JTR