Opinion
No. CV04 400 27 84
September 21, 2005
MEMORANDUM OF DECISION
The plaintiff, Crystal Shah (Shah), has filed this appeal from a decision of the Employment Security Appeals Division-Board of Review (Board) denying her unemployment benefits. On September 24, 2004, the Board certified the record of the proceedings before the Appeals Referee and the Board of Review of the Employment Security Division to the Superior Court.
I. PROCEDURAL HISTORY
On January 5, 2004, Shah submitted a letter of resignation from her position as a file clerk to her employer, the Connecticut Conference of Municipalities. In the letter, Shah advised her employer that her last day on the job would be January 16, 2004. Furthermore, Shah stated that she was submitting her resignation due to a medical condition. According to Shah, this medical condition made it difficult for her to meet the physical demands of the position. She also informed the employer that she wished to pursue a job utilizing her computer skills on a full-time basis.
On January 8, 2004, the employer escorted Shah out of the building and provided her with two weeks of compensation. On January 23, 2004, Shah filed a claim for unemployment benefits, which was granted. The Administrator ruled that Shah voluntarily left her job with good cause attributable to the employer. On January 29, 2004, the employer appealed the decision and filed a protest citing as its reason that Shah voluntarily quit on January 16, 2004.
A hearing, de novo, was held on April 6, 2004 before a referee. The issue for determination was identified on the notice of appeal as, "Whether the claimant voluntarily left suitable work without good cause attributable to the employer, including leaving due to a change in the conditions of employment created by the employer." The referee was provided with a copy of a letter from Shah's physician describing the medical condition that prevented Shah from remaining in her office file clerk position. In addition, the referee was provided with a copy of the job description entitled, "Records Management Assistant."
On April 16, 2004, the referee filed his decision regarding the appeal. In his decision, the referee makes five findings of fact. In finding number four, the referee states that the employer was unaware of Shah's medical condition until she submitted her letter of resignation on January 5, 2004. The referee also made a finding that the employer made an offer to accommodate Shah, but Shah "declined the accommodation from the employer, other than a new position that required limited filing and continuous sitting."
In his conclusions and ruling, the referee stated that Shah did not provide a physician's note to the employer, despite having received one from her physician on November 26, 2003. In addition, the referee concluded that Shah's medical condition "may have been aggravated by her position, but she did not advise the employer of her condition at the onset of the symptoms. Furthermore, . . . she failed to explore any alternatives offered by the employer." The Administrator's decision was reversed and the employer's appeal was sustained.
On April 18, 2004, Shah filed a notice of appeal of the referee's decision. As her reason for the appeal, Shah stated that "I do not agree with the Referee's decision because the employer succeeded in confusing the referee through lies and manipulation of the facts during the hearing." Shah also requested time to retain the services of an attorney as well as to gain access to her personnel file in search of more evidence.
On April 21, 2004, Shah emailed the Appeals Division requesting the opportunity to add information to her appeal. Specifically, Shah wanted to advise the Board that in her research she found a decision of the Board of Review that she believed was exactly on point with her pending case. In her written argument to the Board, Shah stated that her employer's appeal "should be dismissed based on the findings and holding of David S. Meyers v. Park Cadillac Board Case No. 1443-BR-92."
On June 2, 2004, the Board of Review issued its decision on the appeal. The first issue addressed by the Board was Shah's request for a further evidentiary hearing to allow her time to obtain the services of an attorney as well as gather evidence from her personnel file. This request was denied as not sufficient to present good cause. The Board stated that in the form entitled "Notice of Hearing Before A Referee" claimants are expressly advised that, although representation is not necessary, they have a right to be represented by counsel if they so desire. However, if they choose to use the services of an attorney, they must do so in advance of the hearing because a continuance will not usually be granted to obtain the assistance of counsel.
The Board next considered whether or not Shah left her job with good cause attributable to the employer. The Board adopted the referee's findings of fact and affirmed his decision. The Board also made an additional finding of fact that the employer had a policy of promoting employees from within its employee. The Board specifically found that the employer had just promoted one of Shah's co-workers in the clerical department and that this meant that Shah could have applied for work in the clerical department prior to leaving her position. The Board found that Shah left her job prematurely without exploring other options, "because she only wanted a position that used her computer skills and education."
In addition, the Board granted a partial waiver of overpayment of benefits citing the appeals division delay in scheduling a hearing date for the appeal.
On June 8, 2004, Shah filed a motion with the Board of Review to reopen her case. As a basis for her motion, Shah stated that "the ends of justice cannot be met without another hearing to explore the employer's rehiring policies and their reasons for not disclosing the full details of their hiring policies and practices. Furthermore, I have evidence, that the promotion of a coworker was kept secret while I was resigning . . ." Additional reasons to support the request to reopen were also presented, including time constraints on the hearing.
On August 27, 2004, the Board of Review denied the motion to reopen the hearing. The Board determined, after an "independent review of the tape recording of the referee's hearing and the documentary evidence in the record," that the referee had held a full and fair hearing which lasted almost one hour. The Board also found that, even if Shah's allegations were true, the outcome in the case would not change.
On August 30, 2004, Shah filed her appeal to the Superior Court. In her appeal she cites three reasons as the basis for her appeal. First, Shah alleges that the Board did not understand the nature of her job requirements. She points to the fact that in the Meyers case, mentioned above, the Board granted unemployment benefits to a mechanic in a situation almost identical to hers. She alleges that the Board had a clear understanding of what a mechanic's job entails but does not understand what her job requires.
Shah's second reason for appealing the decision is that she believes that her employer provided false and misleading information to the Board and she "would like a credibility determination on her employer." As the third reason for the appeal, Shah states that she has "evidence that the Board may have biased and prejudiced beliefs about the type of work . . ." that she performs.
On September 24, 2004, the Board of Review filed the certified Record of Proceedings Before Employment Security Appeals Division with the Superior Court.
Attached to the certified Record were copies of the documents that constitute the record of the proceedings before the Appeals Referee and the Board of Review. On November 29, 2004, the court, (Corradino, J.) ordered the parties to submit briefs.
On January 6, 2005, Shah filed a brief in support of her appeal. On February 14, 2005, the Board filed a brief in support of its position that the appeal should be dismissed. On June 24, 2004, the court held a hearing. The court did not receive any evidence at this hearing, rather it heard the arguments of counsel for the Board. Shah appeared pro se.
II. ISSUES IN DISPUTE
Shah argues in her brief that the issue before the court is whether she left suitable work with good cause attributable to the employer, including leaving due to a change in conditions of employment created by the employer. She cites to General Statutes § 31-236(a)(2)(A) as support for her position. Shah admits that the employer asked her at the time that she submitted her letter of resignation, whether accommodations could be made. Her response to the Employer was that she did not know what accommodation could be made. Shah argues that it is the employer, and not the employee, who has the burden of suggesting alternatives to leaving a job and in this case, the employer did not suggest an alternative.
The administrator first argues that Shah has misconstrued the scope of review applied by courts in appeals of Board decisions. The administrator states that all of the arguments presented by Shah relate to facts regarding her disability and the need to accommodate such disability. According to the Administrator, Shah is asking the court to substitute its own judgment for that of the Board. The Administrator argues that pursuant to General Statutes § 249b and Practice Book § 22-9, this is outside the scope of the court's review and as a result, the appeal should be dismissed.
The Administrator next argues that the scope of review in this case is even more restricted than in most unemployment compensation appeals. The Administrator asserts that Shah's failure to file a motion to correct the Board's factual findings, as set forth in Practice Book § 22-4, is fatal to an appeal to the Superior Court. The Administrator cites numerous Appellate and Supreme Court cases that have held that the filing of a motion to correct is a necessary prerequisite to challenging the Board's decision. As a result of this omission, the Administrator argues that the appeal should be dismissed.
III. STANDARD OF REVIEW
Prior to discussing the case, it is necessary to set forth the standard of review in cases involving 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." (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administration, 238 Conn. 273, 276, 679 A.2d 347 (1996). See also Practice Book § 22-9 (formerly § 519). "The court must not retry the facts nor hear evidence." (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society, supra, 238 Conn. 276. See also United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385, 551 A.2d 724 (1988); Burnham v. Administrator, 184 Conn. 317, 321, 439 A.2d 1008 (1981). "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." (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society, supra, 238 Conn. 276. "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.) Church Homes, Inc. v. Administrator, Unemployment Compensation Act, 250 Conn. 297, 303-04, 735 A.2d 805 (1999).
The court may remand the case to the board for proceedings de novo, for further proceedings on the record, or for such limited purposes as the court may prescribe. General Statutes § 31-249b. See also Acro Technology, Inc. v. Administrator, 25 Conn.App. 130, 136, 593 A.2d 154 (1991). The court may also order the board to remand the case to a referee. General Statutes § 31-249b.
IV. DISCUSSION
Shah identifies the issue before the court, as one requiring the court to determine if she left suitable employment for "good cause" attributable to the employer. To establish good cause under General Statutes § 31-236(a)(2)(A), a claimant must show (1) that she left employment for reasons which would impel the ordinary prudent person to leave; and (2) that there was no reasonable alternative available to the claimant. Pereira v. Administrator, 6 Conn.App. 658, 660-61, 506 A.2d 1087, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986).
Although that is the issue which Shah is asking the court to decide, the court must first determine if the failure to file a motion to correct findings as set forth in Practice Book § 22-4, prevents the court from hearing the appeal. Practice Book § 22-4 states "If the appellant desires to have the finding of the board corrected he or she must, within two weeks after the record has been filed in the superior court, unless the time is extended for cause by the board, file with the board a motion for the correction of the finding and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for, certified by the stenographer who took it; but if the appellant claims that substantially all the evidence is relevant and material to the corrections sought, he or she may file all of it, so certified, indicating in the motion so far as possible the portion applicable to each correction sought. The board shall forthwith upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties."
In the case of Guerrera v. W.J. Megin, Inc., 130 Conn. 423, 425, 34 A.2d 873 (1943), the Supreme Court discussed section 22-4 [formerly Practice Book, 259]: "The appeal is defective in numerous respects. No motion was made to correct the finding of the commissioner. Practice Book, 259. This is not merely a technical requirement. If the appellant claims that the finding is incorrect, the matter should first be called to the attention of the commissioner that he may have an opportunity to supply omitted facts or to restate findings in view of the claims made in the motion. As trier of the facts, his powers are much broader than those of the Superior Court. Conn.App. Proc., 123. This opportunity for review is similar to that accorded the trial court in other cases. Practice Book, 347. Failure to file this motion would, in itself, justify the dismissal of the appeal. Atwood v. Connecticut Light and Power Co., CT Page 12796 95 Conn. 669, 674, 112 A. 269."
"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). Here, the plaintiff failed to file a motion with the board for collection of the findings, a necessary prerequisite to a challenge to the board's decision." Calnan v. Administrator, 43 Conn.App. 779, 784, 686 A.2d 134 (1996).
Based on the above cases, it seems that the failure to file a motion to correct the findings is fatal to an appeal to the Superior Court. However, the court notes that the reason for this requirement is, as stated in Guerrera, supra, 425, to give the Board an opportunity "to supply omitted facts or to restate findings in view of the claims made in the motion." The reason therefore is not to simply impose a technical requirement called a motion to correct findings, it is for the purpose of alerting the board of claims regarding the findings of fact.
The court finds it noteworthy that in this case, following receipt of the Board's June 2, 2004 decision, on June 8, only six days later, Shah filed a motion to reopen and vacate that decision. The basis for this motion was Shah's position that "the ends of justice could not be met without another hearing to explore the employer's rehiring policy." In addition, Shah informed the Board that she had additional evidence that a job opening within the clerical department was kept secret during the time that she was resigning.
The court notes that Shah, who is unrepresented by an attorney, is articulate and well informed. However, she is not an attorney. Her request for time to obtain an attorney to present her case was denied by the Board. "[I]t is the established policy of the 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." (Internal quotation marks omitted.) Vanguard Engineering, Inc. v. Anderson, 83 Conn.App. 62, 65, 848 A.2d 545 (2004). City of New Haven v. Bonner, 272 Conn. 489, 497-98 (2004).
As most non-lawyers, Shah is unfamiliar with the rules of court procedure. During the hearing before the court, Shah informed the court that she was following the instructions in a publication provided to the public by the agency setting forth guidelines to follow in an appeal to the court. She reported that the publication did not contain any reference to a motion to correct findings.
Practice Book § 1-8 states that the Rules of Practice are to be liberally interpreted. "There is, however, also Practice Book § 547 [now § 1-8] which provides for a liberal interpretation of the rules in any case where it shall be manifest that a strict adherence to them would work injustice, See 20 Am.Jur.2d, Courts, § 85. Procedural rules are not ends in themselves but only the means of administering justice, and exceptions to them in specific cases may be allowed where no violation of constitutional rights is involved. From time to time the court is confronted with exceptional situations that may not be specifically covered by a specific rule. In the interests of justice, however, it has the inherent power to issue an order that meets the problem if it is satisfied no violation of substantial rights will result. State v. Anonymous, 32 Conn.Sup. 306, 312-13, 353 A.2d 789 (1976).
The court finds that the ends of justice will be met by treating the June 8, 2004 motion to reopen and vacate the Board's decision as a motion to correct the findings. To determine issues based upon the fact that a motion was styled as a "Motion to Reopen," rather than examining the substantive purpose of the motion, would truly elevate form over substance in a manner which would serve neither the ends of justice nor the goal of a fair and thorough fact finding process.
The Appeal is sustained, and the case remanded to the Board of Review. The Board is instructed to grant the motion to Reopen and to allow the Plaintiff a reasonable time within which to obtain an attorney as well as access to her personnel file, prior to a de novo hearing.
Camen L. Lopez, Judge