Opinion
No. CV04 4000349S
September 15, 2005
MEMORANDUM OF DECISION
This is an appeal by the CT Tax Fraud Bureau, LLC (the plaintiff) from a decision of the Employment Security Board of Review (Board) declaring that the claimant, Carl Schumacher (claimant) is eligible for unemployment compensation benefits. This action is taken pursuant to § 31-249b of the Connecticut General Statutes and § 22-9 of the Connecticut Practice Book. "The 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 . . . and its provisions are to be constructed liberally as regards beneficiaries in order that it may accomplish its purpose." Cervantes v. Unemployment Comp. Act, 177 Conn. 132, 136 (1979). (Internal citations omitted.)
"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 facts or 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 in abuse of discretion." Mattatuck Museum-Mattatuck Historical Society v. Adm., 238 Conn. 273, CT Page 12665 277. (Internal citations and quotations omitted.)
The chairman, Schumacher, applied for unemployment compensation after being discharged for wilful misconduct alleging that he was working for another employer on plaintiff's time. The Administrator found him ineligible to receive any benefits, ruling for the plaintiff. The claimant appealed from this decision and the matter was referred to a Referee. The Referee, after a hearing de novo, reversed the decision of the Administrator, finding that the claimant was eligible for unemployment compensation benefits. The plaintiff appealed this decision to the Employment Security Board of Review.
The Board's adopting and modifying the Referee's findings found the claimant eligible for unemployment compensation benefits because he was not discharged for wilful misconduct where it was not established he was working for another employer on the plaintiff's time. The plaintiff has appealed from this decision to the Superior Court.
The plaintiff has filed no motions with the Board to correct any of its findings. As a result, the Board's findings are binding upon the Court. The Connecticut Practice Book § 22-4 rules as follows: "If the appellant desires to have the findings of the Board corrected, he or she must within two weeks after the record has been filed in the Superior Court . . . file with the Board a motion for correction of the finding." In Calnan v. Administrator, 43 Conn.App. 779, 785, the Appellate Court stated that: "Here, the plaintiff failed to file a motion with the Board for correction of the findings, a necessary prerequisite to a challenge to the Board's decision."
Section 31-236(a)(2)(B) of the Connecticut General Statutes stated that: "An individual will 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 . . ."
Subsection 16 of the above defines "wilful misconduct" as "deliberate misconduct in wilful disregard of the employer's interest or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer when reasonably applied."
The findings of the Board establish that the claimant was employed by the plaintiff for a period of two years. The plaintiff is owned by two parties, Carl DeProfio and Henry Mottram. At the time in question the LLC was being dissolved.
Subsequent to July 16, 1992, Deprofio learned that Mottram had incorporated a new business named Tax Compliance and Fraud and would be renting an office suite adjacent to the suites occupied by the plaintiff. He also indicated that he engaged the claimant to help set up the business and that he would pay him for these services. This work was not to interfere with his work for the plaintiff.
Subsequently, Suite 1 (the adjacent suite) was occupied by Tax Fraud Bureau, Inc. This company was operated by Jun Kyrytschenko, another employee of the plaintiff.
The claimant was asked by Mottram to inspect any deliveries to Suites 3, 5 and 7 in case they should have been delivered to Suite 1.
Upon returning from his vacation in early July, DeProfio noticed an office had been set up in Suite 1. Mottram indicated that he had leased the space to another corporation. Mottram explained further that he had engaged the claimant to assist in setting up the office but cautioned them not to do any work on Plaintiff's time. DeProfio had observed the claimant on July 10 uncrating some file cabinets on what he thought was plaintiff's time. He took no action at that time however.
The claimant submitted a time sheet to Mottram for work he performed on weekends from June 8, 2003 to July 13, 2003.
A new copier was delivered to Suite 1. Mottram gave the claimant permission to use the copier since it was more efficient even if the work was being done for the plaintiff, since he would be bearing the cost in any event.
On September 8, 2003 DeProfio issued a new work schedule for all plaintiff's employees. The claimant was allotted thirty-five hours per week. Disagreeing with this, the claimant spoke with Deprofio since he was doing extra work ordered by Mottram for the plaintiff. He spoke with Mottram who indicated that he would authorize the additional time and he was not to be concerned.
On September 26, 2003 DeProfio learned that Tax Fraud Bureau, Inc. submitted a bid to the Town of Milford for work which the plaintiff had also submitted a bid. Upon receiving a copy of the bid he learned that Kyrytschenko was the president and the bid also indicted that several other employees of the plaintiff would be working with Tax Fraud Bureau, Inc. The claimant was not asked to become a member of Tax Fraud Bureau, Inc. nor was he informed of the bid.
On the evening of October 27, 2003 DeProfio went to the office to investigate what the claimant might have been doing during the time he was charging to the plaintiff. He observed the claimant walking between Suites. Upon entering the building, he discharged the claimant for performing work for another company on plaintiff's time.
Mottram who was present in the office at the time tried to explain that he had authorized them to work on billing for the Bridgeport Project. The claimant was reviewing documents produced by Kyrytschenko. They were walking around the offices and using the copier in Suite 1 while they worked. DeProfio did not ask to see the work being done.
From these findings the Employment Security Review Board reached the conclusion that the claimant was not discharged for wilful misconduct where it was not established he was working for another employer on the plaintiff's time.
In Burnham v. Administrator, 184 Conn. 317, 321 our Supreme Court stated that: "Judicial Review of the conclusions of law reached administratively is also limited. The Court's ultimate duty is only to decide whether in light of the evidence the Board of Review has acted unreasonably, arbitrarily, illegally or in abuse of its discretion."
Based on the Board's findings of fact and its conclusions of law, the court finds for the defendant Board of Review.
Judgment may enter accordingly.
The Court
CURRAN, J.T.R.