Opinion
No. CV 03 0196458
June 14, 2004
MEMORANDUM OF DECISION
Christian M. Lepore (claimant) applied for unemployment compensation benefits after his employment with Anthony Schicchitano Fine Foods of Stamford, Inc. (employer) ended on November 12, 2002. The claimant had been working for the employer for a little over two years as a store manager. The employer contends that the claimant's employment was terminated for wilful misconduct because the claimant refused to work with the previous owner of the business, Paul Gileno. Gileno remained with the business after it was sold to the new employer, Arthur Newman, who conducted the business as AN Fine Foods, LLC, d/b/a AS Fine Foods of Stamford.
Pursuant to General Statutes § 31-222 et seq., the administrator of the Unemployment Compensation Act (administrator), determined that the claimant had engaged in wilful and deliberate misconduct by refusing the new employer's directive to work with Gileno, and hence is ineligible for benefits.
In accordance with General Statutes §§ 31-241 and 31-237j, the claimant appealed the administrator's decision to the Employment Security Appeals Division, where it was referred to an appeals referee for a hearing de novo. The appeals referee stated that the issue was whether the claimant had been discharged for wilful misconduct. The appeals referee made the following factual findings: (1) after Gileno sold the business on September 11, 2002 to Arthur Newman, the claimant continued to work for the new employer, but objected to working with Gileno, the former owner, because he claimed that Gileno had deceived him by not giving him an opportunity to purchase a part of the business; and (2) when told by the new employer that he must work with Gileno, the claimant said he would rather quit his job than work with Gileno, and was discharged as a result.
In a decision dated January 30, 2003, the appeals referee concluded that the claimant had been discharged for wilful and deliberate misconduct in the course of employment because he had refused to comply with a reasonable directive from the new employer that the claimant work with Gileno. Therefore, the referee affirmed the administrator's decision denying unemployment compensation benefits to the claimant and dismissed the claimant's appeal.
The claimant appealed this decision to the Employment Security Appeals Division Board of Review (board) in accordance with General Statutes § 31-249. The board reviewed the record, including a tape recording of the hearing before the appeals referee and, in a decision dated March 28, 2003, agreed with the referee's findings, including the determination that the claimant was discharged "for wilful misconduct in the course of the employment." The board further determined that the employer's directive that the claimant work with Gileno was "reasonable" and that the claimant's dislike of Gileno was not a valid reason for refusing an order from the employer.
The board concluded that the employer had established and proven that the claimant had been discharged from his employment for wilful misconduct in the course of his employment. The board affirmed the appeals referee's decision and denied the claimant unemployment compensation benefits. The claimant then filed a petition to reopen the appeal because he wished to obtain an attorney to represent him. The petition to reopen was denied because, prior to the hearing, the board advised the claimant in writing that he had the right to have an attorney and that "he should decide well before the hearing date whether he wanted representation." Otherwise, the claimant would, generally, not have good cause to request an additional hearing.
The claimant, referred to hereafter as the plaintiff, appeals to this court pursuant to General Statutes § 31-249b. The board filed a certified return of record, and a hearing was held by this court on the plaintiff's appeal. In his appeal, the plaintiff contends that he does not agree with the decision 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." See also section 31-237g-50(e) of the Regulations of Connecticut State Agencies regarding appeals to the Superior Court.
Practice Book § 22-9(a) provides, in pertinent part, that: "Such appeals are heard by the court upon the certified copy of the record filed by the board. The court does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses . . ." Subsection (b) further provides that: "Corrections by the court of the board's findings will only be made upon the refusal to find a material fact which was an admitted or undisputed fact, upon the finding of a fact in language of doubtful meaning so that its real significance may not clearly appear, or upon the finding of a material fact without evidence."
"[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 . . ." Cervantes v. Administrator, Unemployment Compensation Act, 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)." (Citation omitted; internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 278, 679 A.2d 347 (1996).
As to the standard of review, our Supreme Court has indicated that this 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, Unemployment Compensation Act, 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." (Internal quotation marks omitted.) United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, supra, 209 Conn. 386. Moreover, the construction placed upon a statute or regulation by the agency responsible for its enforcement and administration is entitled to great deference. See 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).
As to the legal merits of the appeal, "[o]ur 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." (Internal quotation marks omitted.) JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417, 828 A.2d 609 (2003). The issue is whether "the decision of the board was logically and rationally supported by the evidence . . ." Calnan v. Administrator, Unemployment Compensation Act, 43 Conn. App. 779, 785, 686 A.2d 134 (1996).
General Statutes § 31-236(a)(2)(B) provides in pertinent part that an individual is ineligible for benefits if he or she was discharged for "wilful misconduct in the course of the individual's employment." "Wilful misconduct" is defined as "deliberate misconduct in willful 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 . . ." General Statutes § 31-236(a)(2)(16).
Additionally, Section 31-236-26a of the Regulations of Connecticut State Agencies provides that "[I]n order to establish that an individual was discharged or suspended for deliberate misconduct in willful disregard of the employer's interest, the Administrator must find all of the following: (a) Misconduct. To find that any act or omission is misconduct the Administrator must find that the individual committed an act or made an omission which was contrary to the employer's interest, including any act or omission which is not consistent with the standards of behavior which an employer, in the operation of his business, should reasonably be able to expect from an employee. (b) Deliberate. To determine that misconduct is deliberate, the Administrator must find that the individual committed the act or made the omission intentionally or with reckless indifference for the probable consequences of such an act or omission. (c) Willful Disregard of the Employer's Interest. To find that deliberate misconduct is in willful disregard of the employer's interest, the Administrator must find that: (1) the individual knew or should have known that such act or omission was contrary to the employer's expectation or interest; and (2) at the time the individual committed the act or made the omission, he understood that the act or omission was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by mitigating circumstances of a compelling nature. Such circumstances may include: (A) events or conditions which left the individual with no reasonable alternative course of action; or (B) an emergency situation in which a reasonable individual in the same circumstances would commit the same act or make the same omission, despite knowing it was contrary to the employer's expectation or interest."
The plaintiff refused a direct order from his employer. The board's determination that this directive from the employer was reasonable, and that the plaintiff's dislike or disappointment with Gileno did not constitute good cause to refuse the directive is within its province and should not be disturbed because of the axiom set forth in Finkenstein v. Administrator, Unemployment Compensation Act, 192 Conn. 104, 112, 470 A.2d 1196 (1984), to wit, "the Superior Court does not retry the facts or hear evidence in appeals under our unemployment compensation legislation. Rather, it acts as an appellate court to review the record certified and filed by the board of review."
Furthermore, in reviewing this appeal, it is noted that Practice Book § 22-4 provides that if an appellant seeks to have the board's findings corrected, he or she 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. The plaintiff in the present case did not file such a motion. "[The] failure to file a timely motion for correction of the board's findings in accordance with § 22-4 precludes further review of those facts found by the board. See Chavez v. Administrator, Unemployment Compensation Act, 44 Conn. App. 105, 106-07, 686 A.2d 1014 (1997); Calnan v. Administrator, Unemployment Compensation Act, 43 Conn. App. 779, 783-85, CT Page 9344 686 A.2d 134 (1996)." JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 422-23.
In conclusion, the court finds that the board was justified in finding that the plaintiff engaged in wilful misconduct and was not entitled to unemployment compensation benefits. Therefore, the named defendant's motion (#101) for judgment dated October 20, 2003, is granted and the plaintiff's appeal is dismissed.
So Ordered.
William B. Lewis, Judge TR