Opinion
CV165036925
04-24-2017
Kenneth Stern v. Administrator, Unemployment Compensation Act et al
UNPUBLISHED OPINION
Filed April 25, 2017
MEMORANDUM OF DECISION
Matthew E. Frechette, J.
This is a statutory appeal concerning unemployment compensation. The Administrator denied the plaintiff's initial application for benefits. The plaintiff-claimant appealed the decision of the Administrator. An Appeals Referee then conducted a de novo hearing, and affirmed the decision of the Administrator. The plaintiff then ultimately appealed that decision to the Board of Review, and it rendered a decision adopting the referee's findings of fact, and affirmed the referee's decision. The plaintiff then filed this appeal.
" The power of the trial court in appeals of this kind is very limited: '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 [Appeals Referee or] board.' Johnson v. Administrator, 3 Conn.App. 264, 266, 487 A.2d 565 (1985). Its function is to determine only if the board acted rationally and logically or illegally and in abuse of its discretion." Kaplan v. Administrator, 4 Conn.App. 152, 153, 493 A.2d 248 (1985). " 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." Latina v. Administrator, Unemployment Compensation Act, 54 Conn.App. 154, 159, 733 A.2d 885 (1999). The plaintiff in the case at bar did not file a motion to correct any of the referee or board's factual findings per Practice Book § 22-4. As a result, this " prevents further review of [the] facts found by the board." JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422-23, 828 A.2d 609 (2003); Belica v. Administrator, Unemployment Compensation Act, 126 Conn.App. 779, 786-87, 12 A.3d 1067 (2011); " 'In the absence of a motion to correct the finding of the board, the court is bound by the board's finding." (Citation omitted.) Warner v. Administrator, Unemployment Compensation Act, 135 Conn.App. 84, 89, 41 A.3d 348 (2012); Martinez v. Administrator, Unemployment Compensation Act, 170 Conn.App. 333, 338, 154 A.3d 1048 (2017).
General Statutes § 31-236(a)(2)(B) provides that an individual shall be ineligible for 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) provides that: " in the case of absence from work, 'wilful misconduct' means an employee must be absent without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances for three separate instances within a twelve-month period . . ."
The board, as the ultimate fact finder, may make an independent determination of the credibility of the witnesses. Calnan v. Administrator, 43 Conn.App. 779, 686 A.2d 134 (1996). The board, in its findings, determined that the plaintiff's trip to New York City was not a compelling personal circumstance excusing his absence from work, and that the employer established that the plaintiff was also absent without good cause on November 5 through November 7, 2015 and on September 21, 2015. (Record, p. 104.) The board, therefore, found that the employer met its burden of proving that plaintiff was discharged for " disqualifying absenteeism in the course of employment."
Based upon the foregoing record and findings of fact, the board ruled that the employer discharged the plaintiff for deliberate misconduct which constituted wilful misconduct in the course of his employment.
The board is free to weigh the opposing testimony and to accept or reject the competing arguments. Based upon the record before the court, the board's ruling is reasonable and consistent with the applicable statutes, regulations and case law. The board's finding that the plaintiff was properly assisted in presenting his case is also supported by the record. The record supports its finding that the plaintiff was properly discharged for wilful misconduct in the course of his employment. There was ample evidence to support in law the conclusions reached. Accordingly, there is no basis for this court to conclude that the board acted unreasonably, arbitrarily, illegally or otherwise abused its discretion in reaching its decision.
The decision of the board is affirmed and the plaintiff's appeal is dismissed.