Opinion
No. KNL CV 10 5014118
June 2, 2011
MEMORANDUM OF DECISION
Michael Terry appeals pursuant to C.G.S. 31-249b from the decision of the Employment Security Board of Review's (ESBR or board) denying his claim for unemployment compensation benefits. The appeal was set down for hearing on February 7, 2011.
Scope of Review
"[A]ppeals from the board to the Superior Court are specifically exempted from governance by General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act. All appeals from the board to the court are controlled by § 31-249b." Calnan v. Administrator, Unemployment Compensation Act, 43 Conn.App. 779, 783, 686 A.2d 134 (1996). Judicial review of any decision shall be allowed only after an aggrieved party has exhausted his or her remedies before the board. General Statutes §§ 31-248(c) and 31-249a(c). Appeals within the unemployment compensation system must be taken in a timely fashion or they are to be dismissed. Gumbs v. Administrator, 9 Conn.App. 131, 133, 517 A.2d 257 (1986).
"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. Administrator, 238 Conn. 273, 276, 679 A.2d 347 (1996). See also Practice Book § 22-9 (formerly § 519). "The court must not retry facts nor hear evidence." (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, 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). Significantly, Mr. Terry has not filed a motion to correct the record before the administrator nor has he filed a motion to add evidence to the record pursuant to the provisions of § 22-5 of the Practice Book. The statutory appeals mechanism that the plaintiff invokes specifically restricts the manner by which findings of the board can be challenged. Findings of the board "shall be subject to correction only to the extent provided by § 22-9 of the Connecticut Practice Book." General Statutes § 31-249b. Section 22-9 of the Practice Book specifies that the trial court "cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses." See also Calnan v. Administrator, supra, 43 Conn.App. 783-84. For the purposes of this appeal, the court must accept the unchallenged administrative findings of facts.
"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 v. Administrator, 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).
"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." (Internal quotation marks omitted.) United Parcel Service, Inc. v. Administrator, supra, 209 Conn. 386. Questions involving matters of statutory construction are questions of law on which the agency's view is entitled to deference but is not dispositive. See DaSilva v. Administrator, 175 Conn. 562, 564, 402 A.2d 755 (1978). See also Bridgeport Metal Goods Mfg. Co. v. Administrator, 2 Conn.App. 1, 3, 475 A.2d 329 (1984).
Analysis
In this case the Board determined that the claimant was not entitled to unemployment compensation benefits because he was discharged by his employer for wilful misconduct in the course of employment. The record before the Board reflects that the claimant was an employee of the Mashantucket Pequot Gaming Enterprise. On June 3, 2010 the Appeals Referee made findings of fact related to an incident that occurred at the Casino on February 9, 2010. The Appeals Referee determined that there was a factual basis for the employer's determination that the claimant had acted in a rude and discourteous manner toward a supervisor. The Appeals Referee also determined that the claimant had been suspended in the past for an angry workplace confrontation. The Appeals Referee thus concluded that there was a pattern of similar behavior that supported the conclusion of wilful misconduct and a breach of a known rule. Because of this wilful misconduct the claimant was disqualified from receiving unemployment benefits pursuant to Sec. 31-236(a)(2)(B).
The claimant appealed the Referee's decision to the Board. The claimant for the first time argued that his reactions at the workplace was on account of his failure to take medications. The Board declined to consider these new arguments. The Board affirmed the referee's decision and dismissed the appeal.
On appeal to this court, the claimant references his age, his being a veteran, his several partial disabilities and the extreme hardship that this loss of a job and the loss of unemployment benefits has had on himself and his family. In court, the claimant presented his arguments in a calm and courteous manner. Unfortunately, the claimant was unable to marshal any legal arguments that would lead the court to sustain this appeal. The court wishes Mr. Terry good luck in his search for employment.
Based upon these findings and others contained in the Record, there is an adequate record to support the conclusion that Mr. Terry was properly discharged for wilful misconduct.
Accordingly, this appeal is dismissed.