Opinion
No. NNH-CV-10-5033605-S
September 2, 2011
MEMORANDUM OF DECISION
This is a statutory appeal concerning an award of unemployment benefits. Pursuant to General Statutes § 31-249b, the plaintiff, Justin Urbano, challenges a decision by the employment security board of review (review board). In its decision dated July 1, 2010, the review board concluded that the administrator ruled the claimant eligible for unemployment benefits effective January 24, 2010, and notified the employer of its eligibility on February 11, 2010. On March 4, 2010, the employer appealed the administrator's decision to the Hamden office of the appeals division. The appeals division scheduled a hearing of appeal for March 29, 2010, which the claimant and employer attended. By a decision issued on April 13, 2010, Associate appeal Referee Ronald T. Coleman reversed the Administrator's ruling.
The claimant filed a timely appeal to the board of review on April 21, 2010. As per Connecticut General Statutes § 31-249. The board affirmed the referee's decision and dismissed the appeal and ordered that the claimant is disqualified from receiving unemployment compensation benefits effective January 17, 2010. That decision adopted the referee's findings of facts which are:
1. The claimant worked full-time for the subject employer as a client care provider from January 20, 2010, earning a final pay rate of $15 per hour. The employer discharged the claimant on January 21, 2010 for violating policy regarding documentation.
2. The employer does not have a specific written policy regarding documentation of activities. However, the employer maintains communication logs as well as leisure activity logs for it's clients.
3. The employer maintains the logs in order to be aware of where staff take clients and what occurred during the activity.
4. The claimant had the responsibility of one to one care of a client with brain injury. The client could walk and needed various other assistance from the claimant.
5. On or about January 20, 2010, the employer discovered that the claimant did not list activities he did with the client in the leisure activity log. The employer performed a random audit of logs with mileage reimbursements submitted by the claimant. The mileage reports reflected activity that was not in the leisure activity log.
6. The employer presented evidence of incidents on January 16, 2010, January 9, 2010, and January 8, 2010, where the claimant failed to record activity he did with the client.
7. In December 2009, the claimant's supervisor specifically made the claimant aware of the need to document leisure activity with the client. The supervisor needed to be aware of where the client was being taken and if the activity benefits the client.
8. Nothing prevented the claimant from reporting the activity considering the supervisor advised him that he needed to do such reporting.
9. The employer is unaware of other employees failing to document activity performed with clients.
The board added the following findings:
10. In January 2010, the new manager informed the claimant that he must comply with logging and documentation requirements.
11. The employer issued a written warning to the claimant on December 8, 2009, to document and log all client activities.
Unemployment compensation appeals are controlled by General Statutes § 31-249b. Addona v. Administrator, 121 Conn.App. 355, 361, 996 A.2d 280 (2010). The court "acts as an appellate court to review the record certified and filed by the board of review." Finkenstein v. Administrator, 192 Conn. 104, 112, 470 A.2d 1196 (1984). "[O]ur standard of review in administrative proceedings must allow for judicial scrutiny of claims such as constitutional error, jurisdictional error, or error in the construction of an agency's authorizing statute." Id., 113, 470 A.2d 1196. "The court's ultimate duty is to only to decide whether, in light of the evidence, the board . . . has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion." Marquand v. Administrator, 124 Conn.App. 75, 79, 3 A.3d 172 (2010), cert. denied, 300 Conn. 923, 15 A.3d 630 (2011).
The court hearing the administrative appeal does not hear the case de novo. The duty of the court is to function as an appellate court in review the record certified by the board of review. The court does not hear the evidence or retry the facts, United Parcel Services, Inc. v. Administrator, 209 Conn. 381, 385 (1988). The court cannot adjudicate the facts, nor it may substitute its own conclusions for those for the referee or the board of review, Guevara v. Administrator, 172, Conn. 492, 347 A.2d 1101, 1103 (1977). As in Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. 170, 175, 968 A.2d 1971, 974, the board's findings may not be challenged absent the filing of a motion to correct the findings with the Board. Therefore, in the absence of a motion to correct the record, the court cannot disturb the review board's factual findings.
The statutory appeal mechanism set forth in General Statutes § 31-249b limits the method by which findings of the board may be challenged. Practice Book § 22-4 provides in relevant part that "if the appellant desires to have the finding 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 the correction of the finding and with it such portions of the evidence as he or she deems relevant and material to the correction asked for . . ." Failure to file such a motion "prevents this court from reviewing the facts found by the board." Reeder v. Administrator, 88 Conn.App. 556, 558, 869 A.2d 1288 (2005). Also Practice Book § 22-9(a) specifies that the trial court does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, then for the limited purpose of determining whether . . . there was any evidence to support in law the conclusion reached. The court cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses . . .
With respect to issues 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." (Internal quotation marks omitted.) Mattatuck Museum — Mattatuck Historical Society v. Administrator, 238 Conn. 273, 276, 679 A.2d 347 (1996). However, the court "may not substitute its own conclusions for those of the administrative board." Church Homes, Inc. v. Administrator, 250 Conn. 297, 304, 735 A.2d 805 (1999).
At the oral argument before the court on July 25, 2011, the plaintiff, who is a pro se, conceded that a motion to correct the record had not been submitted. The claimant further remarked that he was neither familiar with the procedures nor had any legal training. The claimant during his oral argument made an assertion that he was lost at the referee's hearing because of his lack of legal knowledge and un-familiarity with language. Nevertheless, the claimant admitted that he did not file a motion to correct the decision with the board.
In Belica v. Administrator, Unemployment Compensation Act, 126 Conn.App. 779 (2011), the court stated that it has "always been solicitous of the rights of pro se litigants and, like the trial court, will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party . . . Although we will not entirely disregard our rules of practice, we do give great latitude to pro se litigants in order that justice may both be done and be seen to be done . . . For justice to be done, however, any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can we disregard completely our rules of practice." Gonzalez v. Commissioner of Correction, 107 Conn.App. 507, 512-13, 946 A.2d 252, cert denied, Conn. 902, 957 A.2d 870 (2008).
In this case, the review board made a finding of "wilful misconduct" during the course of claimant's employment, pursuant to Conn. General Statutes § 31-236(a)(2)(B) and § 31-236(a)(16) which provides in relevant part that "whether there was a willful misconduct depends on whether the conduct of the claimant could be held reasonably to amount to a deliberate violation of a reasonable rule . . ., the employer must also establish that the claimant was aware that he or she was violating the rule . . ." The board in its analysis highlighted the factor how a "knowing" violation occurs, and stated that the "claimant must not only be conscious of what he or she is doing, but be aware that he or she is in the process of violating an employer's rule or policy . . ."
The board's finding of facts from claimant's testimony that he did not consistently document activities because his prior manager did not require him to do so . . . he has done this way for the past two years . . . further, the claimant testified that his new manager informed him that he must log all activities . . . the claimant received a written warning from his new manager about his logging activities on December 8, 2009. The board's conclusion was that the claimant knowingly violated the employer's legitimate rule/policy of protecting his clients from serious injuries.
The claimant's assertions of employer discrimination, prevention of logging activities due to non-availability of books to him, other employees did not log and document the activities were not discharged. These claims were not presented at the referee's hearing. The said claims/assertions were brought to the board's attention at appeal for the first time. The board's finding was that these allegations were outside of existing record and made no ruling on these claims.
To the degree that these issues are a factual defect, the court cannot cure it. As noted above, "the Superior Court does not retry the facts or hear evidence" and is bound by "the record certified and filed by the board of review." Finkenstein v. Administrator, supra, 192 Conn. at 112.
On the basis of the certified record, this court finds that the board of review did not act arbitrarily or unreasonably in reaching its conclusion. Accordingly, the claimant's appeal is dismissed.