Michael Smith v. Administrator, Unemployment Compensation Act

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Superior Court of Connecticut.

Michael Smith v. Administrator, Unemployment Compensation Act

CV094034915S

Decided: December 16, 2009

MEMORANDUM OF DECISION

The plaintiff Michael Smith, who was employed at Vitamin World as an assistant manager until November 26, 2007 when he was discharged for wilful misconduct as a result accounting errors in the cash register.   Introduced before the adjudicator was several instances of such errors.   The final one occurred on November 15, 2007 when he miscounted $10.00 although the money was “in the register.”   The administrator took into consideration all the past incidents but approved the plaintiff's application for unemployment compensation benefits because he was “discharged due to error in counting money, which lacks the intent to commit wilful misconduct.”

Vitamin World appealed and the appeals referee (referee) sustained the appeal finding that Vitamin World “presented sufficient evidence to prove a pattern of frequent acts of carelessness or negligence in cash handling that constitutes wilful misconduct under Section 31-236(a)(2)(B) of the Connecticut General Statutes.”

Subsequently, the plaintiff appealed the decision of the referee to the employment security board of review (board).   He claimed that he did not explain certain closing procedures and the referee's assumptions regarding these procedures were incorrect.   Furthermore, he argued that his conduct was negligent rather than intentional.   In addition, the plaintiff claimed that he did, in fact, recount the monies when he prepared the bank deposits.   After reviewing the record, including a tape recording of the hearing before the referee, the board dismissed the appeal and affirmed the referee's denial of benefits on March 14, 2008.   In doing so, the board adopted the referee's findings of fact and conclusions and declined to consider the plaintiff's statements in his appeal.   The board explained:  “We cannot consider allegations in an appeal that are outside of the record of the hearing before the referee.”   In addition, the board characterized the plaintiff's conduct as “occurring with enough frequency to establish that [the plaintiff] was guilty of wilful misconduct.”

On April 8, 2008, the plaintiff filed a petition for review of the board's decision and a motion to reopen.   He requested an opportunity to present additional evidence relevant to his case because he was unfamiliar with board's proceedings and unprepared for the hearing.   The plaintiff stated that there are “differences between reality, and the inferences of the referee.”   In addition, he argued that he was discharged for an error in judgment rather than a pattern of counting errors and that Vitamin World failed to establish a final act of wilful misconduct.   On May 22, 2008, the board denied the plaintiff's petition for review based upon its determination that the plaintiff has already been provided a full and fair opportunity to present his case before the referee.   The board further found that Vitamin World established a final act of wilful misconduct.   In addition, the board stated:  “We thus continue to conclude that there were a sufficient number of instances of careless and negligent behavior to establish that the claimant was guilty of wilful misconduct.”   The board certified the case to the Superior Court for appeal.   This court heard the parties at oral argument.

The limited scope of review of administrative agency decisions permitted by the Superior Court is well settled.  “[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable ․ [T]he trial court may [not] retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact ․” (Internal quotations marks omitted.)  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417, 828 A.2d 609 (2003).   Furthermore, “[a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts.”  (Internal quotation marks omitted.)  Id., 417-18.

“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.”  (Internal quotation marks omitted.)  Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 276, 679 A.2d 347 (1996).  “Whether the circumstances of an employee's termination constitute willful misconduct on the employee's part is a mixed question of law and fact.”  United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 386, 551 A.2d 724 (1988).

In the current appeal, the plaintiff challenges some of the findings of fact adopted by the board regarding the incidents that led to his discharge from work.   In addition, he challenges the board's conclusion of law that the final incident rose to the level of willful misconduct and that there was a pattern of such misconduct.   Furthermore, he presents evidence of mitigation circumstances on the night when the final incident occurred.   The plaintiff further asserts that he was unprepared to defend himself during the referee's hearing, he was “livid” and “froze,” and that he incorrectly described his usual counting process and calculator use during the final incident.

To the extent that the plaintiff challenges the findings of fact, it is noted that he did not file a motion to correct the findings.  “Practice Book § 22-4 provides in relevant part that ‘[i]f the appellant desires to have the finding of the [employment security board of review] 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 ․’ “ JSF Promotions, Inc., v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 422.  “[F]ailure to file a timely motion for correction of the board's findings in accordance with § 22-4 prevents further review [by the Superior or Appellate Court] of those facts found by the board.”  Id. “[T]he timely filing of a motion for correction is a necessary prerequisite to a challenge to the board's decision.”  (Internal quotation marks omitted.)  Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. 170, 175, 968 A.2d 971 (2009).   A plaintiff who fails to file such a motion cannot “challenge the board's findings on appeal to the Superior Court.”  Id. As such, this court may not consider the plaintiff's allegations that the referee and the board erroneously made findings of fact against his interests.

“[T]he remedial purpose of the Unemployment Compensation act is to provide relief for its primary beneficiaries, those who are unemployed without fault or for cause ․ but this beneficent remedial purpose does not support the grant of benefits to an employee guilty of willful misconduct.”  (Citation omitted.)  United Parcel Service, Inc., v. Administrator, Unemployment Compensation Act, supra, 209 Conn. 388.   Accordingly, General Statutes § 31-236(a)(2)(B) provides in relevant part that an individual is not eligible for unemployment compensation benefits if “in the opinion of the administrator, the individual has been discharged ․ [for] willful misconduct in the course of the individual's employment ․” “[W]ilful misconduct means 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, provided such violation is not a result of the employee's incompetence ․” (Internal quotation marks omitted.)   General Statutes § 31-236(a)(16);  see Regs., Conn. State Agencies § 31-236-26.

Pursuant to Section 31-236-26a of the Regulations of Connecticut State Agencies, “[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;  [m]isconduct ․ [deliberateness] ․ [and][w]ilful [d]isregard of the [e]mployer's [i]nterest ․” “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.”  Regs., Conn. State Agencies § 31-236-26a(a).  “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 probably consequences of such act or omission.”   Regs., Conn. State Agencies § 31-236-26a(b).  “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 made the same omission, despite knowing it was contrary to the employer's expectation or interest.”  Regs., Conn. State Agencies § 31-236-26a(c).

In the present case, the board stated that “a series of similar incident of carelessness or negligence of sufficient degree or frequency may be evidenced that an employee is indifferent to his or her duties and is acting in intentional or reckless disregard of the employer's interest.”   It cited United Parcel Service v. Administrator, supra, for this proposition.   The board further stated:  “[t]o find a pattern of willful misconduct, we consider whether an individual has been put on notice that particular conduct is detrimental to the employer's interests.   We also consider the oral number of instances of careless or negligent behavior documents in the record ․ three or more similar acts must be identified to find a pattern of conduct.   Other relevant factors are the frequency with which the acts occurred, their nature, the gravity of the violation, and whether mitigating factors are present.”

In relying on United Parcel Service v. Administrator, the board disregards the amendments made to § 31-236(a)(2)(B) by Public Acts 1995, No. 95-323, § 3. Prior to that amendment, the statute required “that the final incident triggering ․ termination constitute repeated willful misconduct in the course of ․ employment ․” (Internal quotation marks omitted.)  United Parcel Service v. Administrator, supra, 209 Conn. 387.   The court held that “[i]n determining whether the final incident constitutes willful misbehavior, the employee's past departure from company policies, rules and regulations is relevant.   The legislature's reference to willful misconduct that is “repeated” compels such a conclusion.”  Id., 388.   Public Acts 1995, No. 95-323, § 3 amended § 31-236(a)(2)(B) to eliminate the requirement that willful misconduct be repeated before an employee can be denied benefits.   See Latina v. Administratior, Unemployment Compensation Act, 54 Conn.App. 154, 161, 733 A.2d 885 (1999).   As such, the statutory language no longer directs the board or this court to consider past departures from company policies, rules and regulations when determining if an individual was discharged or terminated for an omission constituting deliberate misconduct.   The board applied an incorrect standard to determine whether the plaintiff's conduct rose to the level of willful misconduct.   The current statutory and regulatory scheme refer to “an act or an omission” rather than repeated misconduct which constitutes a pattern.   The appeals referee and the board should have limited their analysis to the November 14, 2007 counting error.

The board is reversed and this case is remanded for further proceedings consistent with this opinion.

Robert I. Berdon

Judge Trial Referee

Berdon, Robert I., J.T.R.

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