TORTORA
v.
ADMIN. UNEMP. COMPEN. ACT

This case is not covered by Casetext's citator
Connecticut Superior Court Judicial District of New Haven at New HavenFeb 3, 2010
2010 Ct. Sup. 4281 (Conn. Super. Ct. 2010)

No. CV09-4035884

February 3, 2010


MEMORANDUM OF DECISION


ARTHUR C. HADDEN, J.

The present case comes to the Superior Court as an appeal from the decision of the Employment Security Appeals Division-Board of Review affirming the decision of the Appeals Division Referee denying the appellant benefits under the Unemployment Compensation Act. The appeal has been filed pursuant to Section 31-249b of the Connecticut General Statutes.

The record reveals that the appellant, Richard Tortora, filed a claim for Unemployment Compensation benefits on or about October 5, 2008. Following a hearing, on November 5, 2008 an adjudicator granted the application for benefits, finding that the claimant had been discharged for reason other than wilful misconduct. The employer filed a timely appeal of that decision and a referee heard the appeal on December 4, 2008. The referee sustained the employer's appeal in a written decision issued on December 11, 2008. The claimant then appealed to the Board of Review. On January 30, 2009 the Board of Review issued its decision affirming the decision of the referee and dismissing the appeal to the Board. This appeal followed and the parties appeared before the court and oral argument was heard on November 16, 2009.

In its decision the Board of Review adopted the referee's findings of fact. Those findings were:

1. The claimant worked part-time for the subject employer as a bartender from April 24, 2005, through September 7, 2008. The claimant last worked for the subject employer on September 7, 2008.

2. On August 29, 2008, the claimant submitted a letter to manager, Joyce Bauer, that stated: "I will begin training in a new job on Tuesday September 2. I will work my normal schedule through September 7. Once I have my schedule at the new situation I will know what days I may have available for Jimmies."

3. The claimant worked his schedule though September 7, 2008.

4. The claimant's schedule with the subject employer had him working weekends only.

5. With the new employer, the claimant had to train on days after September 7, 2008, which included Friday, September 12, 2008.

6. The employer hired a replacement for the claimant on or around September 5, 2008.

7. The subsequent position taken by the claimant was part-time.

8. The claimant did not have a schedule for his new position as of September 7, 2008.

9. The employer had no intention to discharge the claimant.

In addition, the Board of Review's findings of fact added the following language to finding #5:

"The claimant also expected to work Saturdays in the new position."

In appeals pursuant to Section 31-249b of the Connecticut General Statutes "the Superior Court does not retry the matter de novo. It is not its function to adjudicate questions of fact. Nor may it substitute its own conclusions for those of the [Board]." Guevara v. Administrator, 172 Conn. 492, 495 (1977); United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385 (1988).

The controlling provision of the Connecticut Practice Book, Section 22-9, provides in part:

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.

In the event that the appellant wishes the Superior Court to correct the findings of fact made by the Board of Review, the appellant must comply with the provision of Section 22-4 of the Connecticut Practice Book, which provides in part:

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, unless the time is extended for cause by the board, file with the board a motion for the correction of the finding . . .

Where, as in the present case, the appellant fails to file such a motion for correction of the record, the appellant is precluded from challenging the Board's findings of fact. Calnan v. Administrator, 43 Conn.App. 779, 783 (1996). The Superior Court lacks authority to consider challenges to the findings of fact by the Board in the absence of a timely motion to correct the record. Shah v. Administrator, 114 Conn.App. 170, 176 (2009). This court's function, therefore, is to determine if the record establishes that there is a logical and rational basis for the decision of the Board. Taminski v. Administrator, 168 Conn. 324, 326 (1975); Calnan v. Administrator, supra, at page 785.

Throughout the administrative proceedings and this appeal to the Superior Court the claimant has represented himself. Connecticut courts have an "established policy . . . to be solicitous of [self represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self represented] party." New Haven v. Bonner, 272 Conn. 489 (2004). This policy, however, is applicable only when it does not interfere with the rights of other parties. "Although our courts allow [self represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." Mercer v. Crosley, 110 Conn.App. 283, 294 n. 9 (2008). The Connecticut Appellate Court repeatedly has held that the failure of a self-represented party to file a motion for correction precludes further review of the Board's findings by the Superior Court. Shah v. Administrator, supra, at page 177; Reeder v. Administrator, 88 Conn.App. 556, 558 (2005); Calnan v. Administrator, supra, at page 785.

The ultimate obligation of the Superior Court is to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion. JSF Promotions, Inc. v. Administrator, 265 Conn. 413, 417-18 (2003); United Parcel Service, Inc. v. Administrator, supra, at page 385-86. The construction of a statute or regulation by an administrative agency, while not controlling, is entitled to considerable deference. Griffin Hospital v. Commission on Hospitals and Health Care, 200 Conn. 489, 496 (1986). The application of statutory criteria to determine a claimant's eligibility for unemployment compensation involves mixed questions of law and fact in which the expertise of the administrative agency is highly relevant. United Parcel Service, Inc. v. Administrator, supra, at page 386.

In the present appeal to the Superior Court, the appellant claims that the referee and the Board of Review based their decisions on false, contradictory and erroneous statements. As noted previously, this court does not retry the matter de novo and, under the present circumstances, the court is precluded from changing the Board of Review's findings of fact.

The appellant also claims that the referee failed to follow certain procedural requirements in conducting his hearing. The Board of Review addressed these claims and found:

The board has conducted an independent review of the record, including the tape recording of the referee's hearing. We are persuaded that the referee afforded the claimant a full and fair opportunity to present his case. The referee allowed both parties to make opening and closing statements. Both parties declined to make opening statements. However, they offered closing statements in which they argued their respective positions. The referee properly questioned the claimant to assist him in presenting his case. The referee did not exhibit any bias against the claimant.

Once again, this court does not retry the case and is precluded from changing these findings.

Finally, the appellant asserts that the Board of Review has itself demonstrated a bias against him. There is a presumption that administrative board members acting in their adjudicative capacity are not biased. Moraski v. Conn. Board of Examiners of Embalmers Funeral Directors, 291 Conn. 242, 262 (2009). To overcome this presumption the appellant must make an adequate record and demonstrate actual bias. Clisham v. Board of Police Commissioners, 223 Conn. 354, 361-62 (1992); Moraski v. Conn. Board of Examiners of Embalmers Funeral Directors, supra, at page 263-66. None of the claims of the appellant would establish such a record.

An individual is not eligible for unemployment compensation benefits when it is found that "the individual has left suitable work voluntarily and without good cause attributable to the employer . . ." Section 31-236(a)(2)(A) of the Connecticut General Statutes. The Board of Review has concluded that, pursuant to this statutory provision, the appellant is not eligible for unemployment compensation benefits. That conclusion is not unreasonable, arbitrary, illegal or an abuse of discretion.

The decision of the Board of Review is affirmed and the appellant's appeal is dismissed.

It is so Ordered this 31st day of December 2009