Opinion
No. CV 04 0092495S
August 17, 2004
MEMORANDUM OF DECISION
This is an appeal brought by the plaintiff, Carmelina Connole, from the denial of unemployment compensation benefits. The appeal must be dismissed for the reasons set forth below.
The Employment Security Board of Review has certified and filed with the court the record of the proceedings. The record indicates that the administrator of the Unemployment Compensation Act determined that the plaintiff was ineligible for benefits because she left suitable work voluntarily and without good cause attributable to the employer. The plaintiff filed a timely appeal to the employment security appeals division where an appeals referee conducted a de novo hearing, made findings of fact and affirmed the administrator's determination of ineligibility. The plaintiff appealed to the board of review of the employment security appeals division ("board"). The board adopted the referee's findings of facts except for Finding # 4 which was modified. The board upheld the referee's decision finding the plaintiff ineligible for benefits. The plaintiff filed the present appeal. The board filed a return of record, and a hearing was held before this court on July 28, 2004.
The board's findings of fact are as follows (including the modified finding #4):
1. New Haven Register employed the claimant for nearly three years as a sales representative. At the time of separation the claimant worked on the first shift, forty hours per week earning $7.73 per hour.
2. The claimant left the job voluntarily on June 25, 2003.
3. The claimant last worked on June 24, 2003. The next day she verbally advised the publisher of her decision to leave the position immediately.
4. The claimant left the position because she believed that her supervisor was harassing her when he criticized her for reporting to the Torrington office late, spending too much time on the phone and failing to answer the phone at the start of her shift.
5. On June 23, 2003, Mr. Brennan reprimanded the claimant for showing up at the employer's Torrington location about ten minutes late without advising the employer of the tardiness. On certain days the claimant would work part of her shift in Torrington. She would depart from her normal location in Winsted and drive there.
6. Mr. Brennan would also question the claimant when he called her at the start of the business, 8:00 a.m. and she did not answer the phone for a few minutes.
7. He would also interrupt the claimant's conversations with workers in his office if he determined they were not business related.
8. Mr. Brennan was not abusive or profane.
9. The claimant, prior to a parting comment on June 24, 2003, never complained to the publisher about her problem with Mr. Brennan. Had she done so, the publisher would have looked into the issue and try to resolve the problem.
Based upon these findings of fact, the board concluded as follows:
Based upon our review of the evidence in the record before us, we concur in the referee's conclusion that the claimant failed to establish that the employer subjected her to harassment or that she adequately explored alternatives to leaving the job. The supervisor did not criticize the claimant wholly without justification and did not deliver that criticism in an abusive manner. The employer held the claimant accountable for her time, which is a management prerogative. Under these circumstances, we cannot conclude that the job was unsuitable.
Additionally, the claimant did not complain to the publisher prior to tendering her resignation, precluding him from taking any steps to remedy her complaint before she quit. Thus, the claimant voluntarily left suitable work without good cause attributable to the employer.
"[T]he purpose of the unemployment compensation act is to provide income for the worker earning nothing because he is out of work through no fault or act of his own . . ." (Citations omitted.) Cervantes v. Administrator, 177 Conn. 132, 136, 411 A.2d 921 (1979). "[T]he [unemployment compensation] act is remedial and consequently, should be liberally construed in favor of its beneficiaries . . . Indeed the legislature underscored its intent by expressly mandating that the act shall be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualifaction in doubtful cases. General Statutes § 31-274(c)." (Citations omitted; internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, 238 Conn. 273, 278, 679 A.2d 347 (1996).
The Supreme Court has held that a trial court has a limited role when reviewing 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. 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." (Citations omitted.) United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385-86, 551 A.2d 724 (1988). "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." United Parcel Service, Inc. v. Administrator, supra, 209 Conn. 386. Accord Latina v. Administrator, 54 Conn.App. 154, 159-60, 733 A.2d 885 (1999). Moreover, the construction placed upon a statute or regulation by the agency responsible for its enforcement and administration is entitled to deference. Griffin Hospital v. Commission on Hospitals Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S.Ct. 781, 93 L.Ed.2d 819 (1986).
The scope of review is even more limited in this case 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 section 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. In Calnan v. Administrator, 43 Conn.App. 779, 785, 686 A.2d 134 (1996), the court stated that filing a motion with the board for correction of the findings "is a necessary prerequisite to a challenge to the board's decision." Accord Chavez v. Administrator, 44 Conn.App. 105, 106-07, 686 A.2d 1014 (1997). The Supreme Court has recently refused to hear challenges to the board's findings if the parties who appeal fail to file motions to correct. J.S.P. Promotions, Inc. v. Administrator, 265 Conn. 413, 422-23 (2003). The plaintiff in the present case did not file such a motion and therefore the board's factual findings and those conclusions which are based on the weight of the evidence and the credibility of witnesses cannot be challenged. The fact that the plaintiff is acting pro se does not excuse the failure to file this essential motion.
As to the merits of the appeal, the issue is whether "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." Calnan v. Administrator, supra, 43 Conn.App. 785. "The court must not retry facts nor hear evidence." (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, supra, 238 Conn. 276. General Statutes § 31-236(a)(2)(A) provides in pertinent part that an individual is ineligible for benefits if "the individual has left suitable work voluntarily and without good cause attributable to the employer." See also Section 31-236-17 of the Regulations of Connecticut State Agencies to the same effect.
In the present case, the board determined that the plaintiff voluntarily left suitable work without good cause attributable to the employer. "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 his 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, 25 Conn.App. 130, 135, 593 A.2d 154 (1991).
The board determined that the plaintiff left her employment because "she believed that her supervisor was harassing her when he criticized her for the reporting late to the Torrington office, spending too much time on the phone and failing to answer the phone at the start of her shift." However, the board weighed the evidence and determined that "[t]he supervisor did not criticize the claimant wholly without justification and did not deliver that criticism in an abusive manner. The employer held the claimant accountable for her time, which is a management prerogative." Thus, the plaintiff failed to show that her reason for leaving was objectively reasonable. Also, the board found that, prior to leaving, the plaintiff never complained to the publisher about her problem with her supervisor. Therefore, the plaintiff failed to show that there was no reasonable alternative to termination. The court is bound by the board's finding of facts on these issues.
The board of review's decision is affirmed, and judgment hereby enters dismissing the plaintiff's appeal.
BY THE COURT,
John W. Pickard