Opinion
No. CV07-4024236S
January 3, 2008
MEMORANDUM OF DECISION
The appellant, Helen Wrinn, appeals, under the provisions of General Statutes § 31-249b, from the decision of the employment security appeals division board for review affirming the decisions of the appeals referee and administrator denying the claimant eligibility for unemployment benefits. The administrator moves to dismiss the appeal.
According to the record, Jordan Caterers Event Planners (Jordan) hired the plaintiff, Helen F. Wrinn, as an operations manager in March 2004, on a part-time hourly basis. Effective June 13, 2005, Jordan hired the plaintiff on a full-time permanent basis at a salary of $36,400 per year or $1,400 biweekly. Jordan expected the plaintiff to work forty-five hours per week and informed her that she would be eligible for additional "event pay" above and beyond her required 45 hours per week. The event rate would be paid at $20 per hour. The plaintiff signed an employment contract with Jordan on June 21, 2005, which provided in part that all full-time employees will have an official annual review and that a review does not constitute any guarantee of change of compensation package or annual salary. The plaintiff eventually became dissatisfied with her compensation and her hours of work. She did not like the salaried compensation package and grew tired of the early morning and late night shifts. In March 2006, the plaintiff spoke with the employer's general manager, and eventually the owner, and indicated that she felt she was entitled to a raise because of the number of hours she worked. The general manager and owner both agreed plaintiff was deserving of a raise, but never granted her request for wage increase. The plaintiff gave the employer her two-week notice on May 5, 2006 and left her employment on May 19, 2006.
Upon terminating her position, the plaintiff filed an application for unemployment compensation benefits on the grounds that she left the position as a result of dissatisfaction with her hours and Jordan's refusal to grant her a raise. After a hearing, the defendant, the administrator of the Unemployment Compensation Act, denied the plaintiff's application upon determining that the plaintiff voluntarily left suitable employment without good cause attributable to the employer. The plaintiff appealed and the appeals referee upheld the decision on August 10, 2006.
The plaintiff filed two motions to reopen this decision pursuant to General Statutes § 31-248, which were denied. The second of these was processed as an appeal of the referee's decision to the employment security board of review (Board). The Board reviewed the record including the tape recording of the hearing before the referee, adopted the referee's findings of fact and affirmed her decision on October 18, 2006. Specifically, in adopting the appeals referee's finding, the Board determined that the plaintiff failed to establish that Jordan breached its employment contract with regard to wages or hours. Similarly, the plaintiff failed to establish that Jordan breached any other agreements regarding an increase in wages. The plaintiff filed a motion to reopen this decision pursuant to General Statutes § 31-249a(b) which was denied. Pursuant to General Statutes § 31-249b and Practice Book § 22-9, the plaintiff appealed the Board's decision to the Superior Court on December 22, 2006. In her brief, the plaintiff asserts that the Board erred in finding Jordan did not breach any agreement to increase her wages, that her dissatisfaction with her hours was sufficient to show her quitting was due to good cause attributable to her employer, and that she was not compensated $20.00 per hour for work in excess of 45 hours, in violation of her employment agreement. The record reflects that the plaintiff never filed a motion to correct pursuant to Practice Book § 22-4.
The defendant Administrator asserts that the Superior Court's review of the Board's decision is extremely limited and that dismissal of the appeal is appropriate in light of the nature of this court's review and because the Board's denial of the benefits was reasonably drawn from the facts.
DISCUSSION
Under § 31-249b and Practice Book § 22-9, the function of the Superior Court in unemployment compensation appeals is to scrutinize the decision of the board of review to determine whether the Board's factual findings and conclusions are supported by the evidence before the Board. The court "cannot review the conclusions of the Board when these depend upon the weight of the evidence and the credibility of witnesses." Practice Book § 22-9(a). Consequently, the court d oes not retry the case and "is bound by the findings of subordinate facts and the reasonable conclusions of fact." Latina v. Administrator, 54 Conn.App. 154, 159 (1999).
The foregoing principles have been further explained by our Supreme Court as follows: "Review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's finding of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither th[e] [appellate] court[s] nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion . . . [A]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts." (Citations omitted; internal quotation marks omitted.) JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417-18, 828 A.2d 609 (2003).
In the present case, the scope of review is even more limited because the plaintiff failed to file a motion to correct the findings of the Board. General Statutes § 31-249b provides, in pertinent part, that: In any appeal, any finding of the referee or the Board shall be subject to correction only to the extent provided by § 22-9 of the Connecticut Practice Book. Moreover, Practice Book § 22-4 provides that if an appellant seeks to have the Board's findings corrected, he 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 such portions of the evidence considered relevant to the corrections being sought. Filing a motion with the Board for correction of the findings is a necessary prerequisite to a challenge to the Board's decision.
The plaintiff did not file a motion to correct the Board's findings of fact, as permitted by Practice Book § 22-4. The plaintiff is consequently precluded from challenging those findings, and this court is precluded from "further review of those facts found by the Board." JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 422.
In the present case, the plaintiff appears pro se. "[I]t 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]onetheless, [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." New Haven v. Bonner, 272 Conn. 489, 497-98, 863 A.2d 680 (2004).
The plaintiff in the present controversy has not filed a motion to correct the findings of the Board. The Board's factual findings and conclusions, which are based on the evidence and the credibility of the witnesses, cannot now be challenged. This court must only consider whether the record contains evidence to support the decision reached by the Board and whether that decision was logically and rationally supported by the evidence. Calnan v. Administrator, 43 Conn.App. 779, 785, 686 A.2d 134 (1996).
The Board stated in its decision dated October 18, 2006 that it adopted the referee's findings of fact. In addition, there were findings of fact contained in the Board's decision on claimant's Motion to Reopen, dated December 14, 2006. The findings of fact of the Board consist of those made by the Board and the referee in her decision of August 10, 2006.
The fact that the Board and the Referee did not label some of their findings of fact as such does not preclude them from being identified as findings. The content of the statement, rather than the label placed on it, is controlling. See e.g., Unemployment Compensation Board of Review v. Wright, 25 Pa. Cmwlth. 522, 360 A.2d 842, 844 (1976). (A "finding of fact" by the Unemployment Compensation Board of Review is constructed of conclusions concerning weight and credibility given to testimony and other evidence); Mikel v. State, 528 S.W.2d 796, 707 (Mo.App. 1975) (A "finding of fact" is a statement by the court as to what facts the court finds to be true which in turn leads the court to form conclusions of law). The referee's and Board's findings of fact meet these criteria.
The Board adopted the following findings of the Referee:
1. The claimant worked as an operations manager for Jordan Caterers Event Planners LLC from March 2004, until she left work voluntarily on May 19, 2006.
2. The claimant worked varied hours from 4:00 or 5:00 a.m. to 11:00 p.m.
3. The employer hired the claimant on a part-time hourly basis. Effective June 13, 2005, the employer hired the claimant on a full-time permanent basis at a salary of $36,400 per year or $1,400 biweekly. The employer expected claimant to work forty-five (45) hours per week and informed her that she would be eligible for additional "event pay" above and beyond her required 45 hours per week. The event rate would be paid at $20 per hour.
4. The claimant signed an employment contract with the employer on June 21, 2005. The contract provided that all full-time employees will have an official annual review and that a review does not constitute any guarantee of change of compensation package or annual salary.
5. Through June 2005, the claimant also worked part-time for Wal-Mart Associates.
6. The claimant wanted to continue with some part-time employment after she commenced full-time work with the employer. Because of her varied hours with the employer, she was unable to arrange hours with another employer.
7. For the employer's weeks endings July 3 though 31, 2005, the claimant's weekly hours ranged from 32.25 to 43.25.
8. For the employer's weeks ending August 7 through 28, 2005, the claimant's weekly hours ranged from 38.5 to 50. Only one week in this month exceeded 45 hours.
9. For the employer's weeks ending September 4 through 25, 2005, the claimant's weekly hours ranged from 47 to 52.5.
10. For the employer's weeks ending October 2, though 30, 2005, the claimant's weekly hours ranged from 40.5 to 46.25.
11. For the employer's weeks ending November 6 though 27, the claimant's weekly hours ranged from 38.25 to 51. Only one week in the month exceeded 45 hours.
12. For the employer's weeks ending December 4 though January 1, 2006, the claimant's weekly hours ranged from 27.5 to 60.5. In this period, two out of the five weeks exceeded 45 hours.
13. During the employer's week ending January 8, 2006, the claimant worked five days for a total of 34.25 hours.
14. During the employer's week ending January 15, 2006, the claimant worked five days for a total of 39.25 hours.
15. During the employer's week ending January 22, 2006, the claimant worked five days for a total of 37.25 hours.
16. During the employer's week ending January 29, 2006, the claimant worked seven days for a total of 42.5 hours. On the seventh day she worked just 1.75 hours.
17. During the employer's week ending February 5, 2006, the claimant worked four days of a total of 24 hours.
18. During the employer's week ending February 12, 2006, the claimant worked five days for a total of 36 hours.
19. During the employer's week ending February 19, 2006, the claimant worked five days for a total of 33.25 hours.
20. During the employer's week ending February 26, 2006, the claimant was on vacation.
21. During the employer's week ending March 5, 2006, the claimant worked five days for a total of 36.75 hours.
22. During the employer's week ending March 12, 2006, the claimant worked five days for a total of 35.5 hours.
23. During the employer's week ending March 19, 2006, the claimant worked six days for a total of 43 hours.
24. During the employer's week ending April 2, 2006, the claimant worked five days for a total of 35.25 hours.
25. During the employer's week ending April 9, 2006, the claimant worked six days for a total of 39.75 hours.
26. During the employer's week ending April 16, 2006, the claimant worked seven days for a total of 38 hours.
27. During the employer's week ending April 23, 2006, the claimant worked five days for a total of 35 hours.
28. During the employer's week ending April 30, 2006, the claimant worked five days for a total of 51 hours.
29. During the employer's week ending May 7, 2006, the claimant worked five days for a total of 35 hours.
30. During the employer's week ending May 14, 2006, the claimant worked seven days for a total of 57.5 hours.
31. During the employer's week ending May 21, 2006, the claimant worked four days for a total of 30 hours.
32. Between June 13, 2005, and May 19, 2006, the claimant started work prior to 7:00 a.m. on thirteen occasions. Most of those occasions were between the hours of 6:00 and 7:00 a.m.
33. Between June 13, 2005, and May 19, 2006, the claimant shift ended after 6:00 p.m. on fifteen occasions. Most were between 6:00 and 8:00 p.m. There was one occasion when her shift ended at 10:30 p.m.
34. The claimant became dissatisfied with her compensation and her hours of work. She did not like the salaried compensation package and grew tired of the early morning and late night shifts.
35. In March 2006, the claimant asked the employer's general manager for a raise. The claimant felt that she was entitled to a raise because of the number of hours she worked. The general manager told the claimant that she was deserving of a raise. The claimant also approached the owner who also told the claimant that she deserved a raise.
36. The employer did not grant the claimant's request for a wage increase.
37. On or around May 5, 2006, the claimant gave the employer a two-week notice of her intent to leave the employment on May 19, 2006. The claimant worked out her notice period.
The referee also issued the following findings of fact in her decision.
The record shows that the claimant signed an employment contract effective June 12, 2005, which provided that she would work forty-five hours per week at a salary of $36,400 per year. The contract also provided that the claimant would receive "event pay" above and beyond her required forty-five hours per week at a rate of $20 per hour.
[T]he employer did not breach the claimant's employment agreement with respect to her wages.
The claimant was disappointed that the employer did not grant her a wage increase in March 2006. However, the contract the claimant signed with the employer did not guarantee the claimant a wage increase, particularly one at less than her one-year anniversary date . . . In the present case, the employer did not breach any agreement to pay the claimant a wage increase.
[A] review of the claimant's time cards shows that in general the claimant worked forty-five hours per week or less. She only worked greater than 45 hours in ten weeks in the eleven-month period between June 13, 2005 and May 19, 2006. In addition, although the claimant maintains she routinely worked sixty hours per week, her time cards show that she worked sixty hours in just one week in this period and there were only three weeks where she worked between 50 and 59 hours per week. The evidence does not support a finding that the employer breached the claimant's employment agreement as to her wages and/or her hours of work.
The claimant also argues that she routinely worked from early in the morning (4:00 a.m.) to late at night (11:00 p.m.). The claimant's time cards do not support this contention. In general, the claimant worked daytime hours, starting at 7:00 or 8:00 a.m. and ending between 3:00 and 5:00 p.m. On rare occasions the claimant started before 6:00 a.m. and there was only one occasion where she worked as late a, 10:30 p.m. This evidence does not show that the claimant worked long and/or excessive hours.
Referee Decision, Rec. at 156-57.
In addition, the Board found the following in its decision on the claimant's motion to reopen:
The record reveals that the claimant has not established that she was working excessive hours or that the employer breached its contract by not paying her a base salary plus event pay, when she resigned in disappointment when she did not receive a raise. We have no doubt that the claimant was a hardworking employee. However, since the claimant was paid an additional $20 per hour for the time she worked beyond 45 hours, she had an incentive to keep accurate time records.
Decision on Claimant's Motion to Reopen dated December 14, 2006, Rec. at 184-86.
As noted previously, this court is bound by the findings of fact of the Board where, as here, the plaintiff fails to file a motion to correct. JSF Promotions, Inc. v. Administrator, supra, 422-23.
The grounds raised by the plaintiff in her brief, and again before the court at oral argument, consist of an alternate version of the facts to that found by the Board. The court, at oral argument, explained that by law, the instant appeal was not a vehicle by which the matter could be re-litigated.
An individual is not entitled to unemployment compensation if he or she leaves suitable work voluntarily without good cause attributable to his employer. General Statutes § 31-236(a)(2)(A). There are a limited number of ways the plaintiff can show good cause:
"In determining whether an individual's reason for leaving suitable work is for good cause attributable to the employer, the Administrator must find that the reason relates wages, hours or working conditions which comprise the employment that the individual voluntarily left." Regs., Conn. State Agencies § 31-236-19. "An individual leaves suitable work `for cause' within the meaning of the statute, when he leaves employment for reasons which would impel the ordinary reasonable person to leave and which provide the individual with no reasonable alternative but to terminate employment . . . As a matter of law, therefore, a claimant must show that his basis for leaving employment is objectively reasonable and that no reasonable alternative to termination exists." (Citations omitted; internal quotation marks omitted.) Acro Technology, Inc. v. Administrator, Unemployment Compensation Act, 25 Conn.App. 130, 135, 593 A.2d 154 (1991).
The plaintiff claims she had good cause to leave her employment based on wages and hours. The Regulations of the Connecticut Agencies provide the administrator with a two-part test to determine whether an individual has demonstrated good cause for leaving his employment due to wages. Regs., Conn. State Agencies § 31-236-20. First, the administrator must find that the working conditions fit into one of six categories specified in § 31-236-20(1)(A)-(F).
Second, the administrator must also find that "the individual expressed his dissatisfaction regarding the working condition to his employer and unsuccessfully sought a remedy through those means reasonably available to him before leaving his employment . . ." Regs., Conn. State Agencies § 31-236-20(2). Two provisions are arguably relevant to the facts of this case. The first is satisfied if the employer "breached the original employment agreement or made a material misrepresentation at the time of hire." Regs., State Agencies § 31-236-20(1)(A).
"The elements of breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 916, A.2d 834 (2007). "Whether there was a breach of contract is ordinarily a question of fact." (Internal quotation marks omitted.) Rent-A-PC, Inc. v. Rental Management, Inc., 96 Conn.App. 600, 607, 901 A.2d 720 (2006). The appeals referee, in a decision adopted by the Board, noted that "[t]here is no dispute that the employer did not pay the claimant her annual salary of $36,400 or $1,400 biweekly." Thus, the vast majority of the plaintiff's wages are not even at issue here. The plaintiff, however, does object to the Board's finding, adopted from the referee's finding, that "[t]he claimant also did not allege that the employer did not pay her `event pay' when her hours exceeded forty-five." The Board stated unequivocally in its decision on the plaintiff's motion to re-open: "The record reveals that the claimant has not established that . . . employer breached its contract by not paying her a base salary plus event pay." As breach of contract is normally a question of fact, the appeal board's decision that "[t]he employer did not breach the claimant's employment agreement with respect to her wages" is a reasonable conclusion based on the facts. JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 417-18.
Good cause with regard to wages may also be demonstrated by proof that the employer "failed to grant the individual a wage increase in violation of his employment contract or a previously established express commitment by his employer . . ." Regs., Conn. State Agencies § 31-236-20(1)(c). As adopted by the Board, the employment contract merely provided all employees with an "annual review and that a review does not constitute any guarantee of change of compensation package or annual salary." Thus, the plaintiff's sole contention is that she was expressly promised a raise. The facts, as adopted by the Board, however, merely state the owner and general manager of Jordan told her "she deserved a raise." The Board ultimately found that "the employer did not breach any agreement to pay the claimant a wage increase." Again, this court cannot overturn the facts found by the Board and this conclusion drawn from those facts is reasonable. JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 417-18. The plaintiff thus fails part one of the test for demonstrating good cause due to wages, and as a result, the second part of the analysis involving the adequacy of plaintiff's attempts to express dissatisfaction and remedy the situation prior to leaving her employment is moot.
In addition, the plaintiff claims that she had good cause for leaving her employment due to her dissatisfaction with her hours. The Regulations of the Connecticut Agencies provide the administrator with a two-part test to determine whether an individual has demonstrated good cause for leaving his employment due to hours. Regs., Conn. State Agencies § 31-236-21. First, the administrator must find that the working conditions fit into one of three categories specified in § 31-236-21(a)(1)(A)-(C). Second, the administrator must also find that "the individual expressed [her] dissatisfaction regarding the working condition to [her] employer and unsuccessfully sought a remedy through those means reasonably available to him before leaving his employment . . ." Regs., Conn. State Agencies § 31-236-21(a)(2). Two provisions are again arguably relevant to the facts. The first is satisfied if the employer "during the course of employment, substantially changed the hours established in the employment agreement and such change had a significantly adverse effect on the individual." Regs., State Agencies § 31-236-21(a)(1)(A).
The employment contract called for the plaintiff to work around forty-five hours per week. The Board adopted the appeals referee's finding that "[s]he only worked greater than 45 hours in ten weeks in the eleven month period between June 13, 2005 and May 19, 2006." Ultimately, the Board adopted the appeals referee's holding that "[t]his evidence does not support a finding that the employer breached the claimant's employment agreement . . . as to her hours of work." As previously discussed, this court is bound by the Board's determination of questions of fact. The second potentially applicable provision reads that employee can establish good cause for leaving employment if the individual's employer "required the individual to work irregular or excess hours which would engender the individual's health or safety . . ." Regs., Conn. State Agencies § 31-236-21(a)(1)(c). The Board, in adopting the decision of the appeals referee, stated: "[T]he claimant worked daytime hours, starting at 7:00 or 8:00 a.m. and ending between 3:00 and 5:00 p.m." Ultimately, the Board concluded that "[t]his evidence does not show that the claimant worked long and or excessive hours." Again, the Superior Court cannot overturn the facts found by the Board and this conclusion drawn from those facts is reasonable. JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 417-18. The plaintiff thus fails part one of the test for demonstrating good cause due to hours. Therefore, part two of the analysis involving the adequacy of the plaintiff's attempts to express dissatisfaction and remedy the situation prior to leaving her employment is moot.
Accordingly, this court finds that 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. The plaintiff fails to point to anything in the Board's decision that rises to such standard.
ORDER CT Page 171
The decision of the Board of Review is hereby affirmed and the plaintiff's appeal is dismissed.