Opinion
No. CV 03-0071134
December 17, 2003
MEMORANDUM OF LAW RE ADMINISTRATIVE APPEAL
Pursuant to General Statutes § 31-249, the plaintiff, Gary E. Mims, appeals from the decision of the employment security board of review (board), in which the board affirmed the appeals referee's reversal of the administrator's decision to grant unemployment benefits to the plaintiff.
FACTS AND PROCEDURAL HISTORY
The appeals referee found the following facts. (Return of Record [ROR], Item 11.) The plaintiff was a full-time employee of the Burger King Corporation (Burger King) from December 2, 1992, to December 17, 2002. During the final two years of the plaintiff's employment with Burger King, he held the position of maintenance technician. That position required the plaintiff to work a very busy schedule including significant overtime hours, on occasion as much as forty hours of overtime in a week. The plaintiff has a history of alcoholism and was a recovering alcoholic throughout his employment with Burger King.
"Where . . . the board of review has adopted the findings and has affirmed the decision of the appeals referee, [t]he [Superior Court] is bound by the findings of subordinate facts and reasonable factual conclusions made by the appeals referee . . ." (Internal quotation marks omitted.) Stamford v. Administrator, 15 Conn. App. 738, 742, 546 A.2d 335, cert. denied, 209 Conn. 814, 550 A.2d 1082 (1988).
On June 25, 2001, because of allegations that the plaintiff had purchased and consumed alcohol during work hours, the plaintiff's supervisor reviewed Burger King's drug and alcohol policy with the plaintiff and gave the plaintiff a written copy of the policy along with a copy of Burger King's policy regarding family and medical leave. The plaintiff worked for the next year without any disciplinary incidents.
In early June 2002, the plaintiff married. During the wedding celebration, the plaintiff consumed alcohol, which led to a relapse into active alcoholism. From June 12 to June 14, 2002, the plaintiff failed to report for work without notice to Burger King. The plaintiff's supervisor gave the plaintiff a formal written warning on June 18, 2002. During the discussion of the warning, the plaintiff admitted to the supervisor that he was an alcoholic and that his unexcused absences were a result of his having overindulged in alcohol. The plaintiff also complained that the excessive hours required by the job created undue stress on him. The supervisor offered the plaintiff a demotion to a preventative maintenance technician, the position he had previously held, which would have provided a more standard work schedule and less overtime, but the plaintiff declined the offer because he did not want to go backwards in his career path. Instead, the plaintiff requested a leave of absence to obtain rehabilitative treatment for his alcoholism, which Burger King granted.
The plaintiff returned to work on July 4, 2002, approximately two weeks later. On July 19, 2002, Burger King issued the plaintiff a second and final written warning for failing to report for a scheduled day of work without notice. On December 13, 2002, the plaintiff again failed to report to work without notice. He was scheduled off on December 14 and December 15, 2002, and then failed to report on December 16, 2002. On December 17, 2002, after the plaintiff failed to report to work at his scheduled start time, the plaintiff's supervisor telephoned the plaintiff. The plaintiff agreed to come in that morning and meet with the supervisor. The plaintiff arrived out of uniform and informed the supervisor that he was resigning due to what he perceived as undue stress caused by excessive hours of work, although during his last full week of work the plaintiff had worked a total of 44.5 hours. The supervisor accepted the resignation, but would have allowed an additional medical leave had the plaintiff requested it.
Following his resignation, the plaintiff pursued a claim for unemployment compensation benefits. The adjudication specialist granted the plaintiff's application for benefits concluding that Burger King had substantially changed the plaintiff's working conditions by adding duties and responsibilities and that the plaintiff had resigned for good cause attributable to Burger King. (ROR, Item 3.)
Burger King appealed to the employment security appeals division from the adjudication specialist's decision. (ROR, Item 4.) A hearing was held before an appeals referee on April 16, 2003. (ROR, Item 6.) In her decision mailed on April 30, 2003, the referee reversed the adjudication specialist's decision. The referee concluded that the plaintiff voluntarily had left suitable work and the reasons offered by the plaintiff for his resignation did not constitute good cause attributable to Burger King because the plaintiff had been aware of the working conditions before he accepted the position and had acquiesced to those conditions by accepting them for a significant period of time without complaint. Further, the plaintiff had been aware that he could have requested a leave of absence, but instead had chosen to resign. (ROR, Item 11.)
The plaintiff filed an appeal to the board from the referee's decision with the employment security appeals division on May 19, 2003. (ROR, Item 12.) On July 30, 2003, after reviewing the record, including a tape recording of the referee's hearing, the board issued a decision adopting the factual findings and affirming the decision of the referee. ROR, Item 12.) The plaintiff filed this appeal to the Superior Court with the employment security appeals division on August 27, 2003. (ROR, Item 15.) The petition of appeal and the return of record were filed with the clerk of the Superior Court on September 9, 2003. The plaintiff has not filed a brief. The administrator of the Unemployment Compensation Act filed a brief on October 15, 2003. The appeal was taken on the papers on October 20, 2003.
DISCUSSION
"Appeals to courts from administrative agencies exist only under statutory authority . . . A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal." (Citations omitted; internal quotation marks omitted.) Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council, 217 Conn. 143, 152, 584 A.2d 1183 (1991). Appeals from the employment security board of review to the Superior Court are governed by the Unemployment Compensation Act, General Statutes § 31-222 et seq.
Appeals of this nature are exempt from the Uniform Administrative Procedure Act codified at General Statutes § 4-166 et seq. General Statutes § 4-186.
Section 31-249b provides in part that any petition to the Superior Court for review of a decision of the board "shall state the grounds on which a review is sought . . ." No appellate court has addressed this statutory provision. In Hugie v. Administrator, 27 Conn. Sup. 407, 408-09, 240 A.2d 918 (1968), however, the Superior Court held that the requirement that the petitioner state the grounds for appeal "is mandatory and a matter of jurisdiction" and "the total absence of any grounds of review in the petition" was fatal to the appeal. Although this court is not bound by that decision, it nevertheless finds the rationale in Hugie persuasive. See also Tarala Electric v. Administrator, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 920122973 (December 9, 1992, Mottolese, J.) (citing Hugie as rationale for dismissing, sua sponte, unemployment compensation appeal in which pro se appellant failed to state grounds for appeal).
In the present appeal, the plaintiff is not represented by counsel. Although mindful that the court must read the plaintiff's petition with the necessary deference afforded to pro se litigants, the court nevertheless concludes that the petition fails to state any ground for review of the board's decision. The petition states: "All previous hand written comments from the previous appeal still apply." In other words, the plaintiff wishes to reassert the same arguments that he raised before the board in his appeal from the referee's decision. The plaintiff, however, has not stated a single reason why he believes the board erred in affirming the referee's decision. In Tarala Electric v. Administrator, supra, Superior Court, Docket No. CV 92 0122973, the court stated that a conclusory statement that the board erred in rendering its decision, without some rationale for that assertion, was insufficient grounds for an appeal. The present petition lacks even such a conclusory statement. The plaintiff has only implied that the board erred and has left it to the court to infer the grounds for appeal, which the court properly cannot do.
"[I]t is the established policy of the 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 . . . Although we 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." (Citation omitted; internal quotation marks omitted.) Ruiz v. Gatling, 73 Conn. App. 574, 575, 808 A.2d 710 (2002).
The plaintiff's handwritten petition states: "I have explained in the previous appeal as to what happened to me. I was told by Mr. Paul Ellinger (a company official) via two phone calls to my house, not to report to work, from Dec. 18th and not to drive the company van from this date forward. Mike Baxley was to call me and schedule a meeting at which I was to be terminated, which is what happened.
"All the previous hand written comments from the previous appeal still apply. "Personally I cannot understand why after 40 years of steady work, and have never applied for unemployment benefits, why I cannot collect after having been terminated." (ROR, Item 15.).
CONCLUSION
Because the plaintiff has asserted no legal grounds on which this appeal should proceed, he has failed to conform to the statutory requirements for bringing an appeal pursuant to § 31-249b and the court lacks jurisdiction to hear the appeal. The plaintiff's appeal is therefore dismissed.
SWIENTON, JUDGE.