Monica Pensanti v. Administrator, Unemployment Compensation Act (2009)

MEMORANDUM OF DECISION

The plaintiff, Monica Pensanti, was employed at A-1 Toyota from May 9, 2007 to June 10, 2008 as a service advisor.   She was discharged for misusing “up sell bonuses,” which was considered payroll tampering and against company policy.   A-1 Toyota awarded small bonuses to employees based upon “up sells,” or selling additional services beyond what the customer requests or was previously scheduled to receive.   She was previously warned for misuse of up sell bonuses.

A hearing was held on June 25, 2008.   The adjudicator made the following findings of fact.   The plaintiff was discharged on June 10, 2008 for “falsifying her up sell sheet.”   She “attempted to get credit towards a monthly bonus by listing additional services she recommended to customers for which she would get a bonus,” which was against policy.   The plaintiff was “previously warned about this dishonest practice.”   Finally, the plaintiff did not “check records to see if the service was already scheduled by someone else in order to get the extra credit.”   The adjudicator ruled that the plaintiff was ineligible for unemployment compensation because she was discharged for a dishonest business practice, which constitutes wilful misconduct in the course of employment in wilful disregard of her employer's interest.

The plaintiff appealed the denial on the ground that she “never committed an act of wilful misconduct.”   The appeals referee (referee) determined that the employer failed to establish that the plaintiff was discharged because she knowingly violated an employer rule or policy, and thus, reversed the adjudicator's decision and sustained the appeal.   The referee made the following findings of fact.   The plaintiff was employed as a service advisor until she was terminated for alleged falsification of sales records, or “theft.”   When a service advisor successfully advises a customer to perform work not previously authorized, the service advisor may receive a bonus for “up selling.”   On multiple occasions, particularly when the shop was busy, the plaintiff would discuss vehicle maintenance with customers that had, unbeknownst to the plaintiff, requested the same maintenance work.   If the plaintiff failed to ask the customer if the maintenance had already been requested, the plaintiff might believe that she had “up sold” the work.   The plaintiff did not always check the appointment book to determine whether the work was previously requested.   The plaintiff was aware that it was the employer's policy that falsification of records is prohibited and will lead to disciplinary action.   The plaintiff received a warning on June 2, 2008 when she listed an up sell for an item the customer had previously requested.   On June 7, 2008, the plaintiff incorrectly listed three up sells, rendering her eligible incentive amounts.

A-1 Toyota filed a timely appeal of the referee's decision to the board on August 19, 2008.   In support of its appeal, A-1 Toyota submitted an affidavit of Michael Querfeld, the service manager of A-1 Toyota.   Querfeld attested that the plaintiff was discharged for wilful misconduct after she knowingly violated company policy regarding up-sells.   In addition, it submitted an affidavit of Ron Martone, a mechanic at A-1 Toyota.   Martone attested that the plaintiff offered to use another customer's warranty contract to cover the costs to repair tires on his wife's vehicle.

The board issued its decision on October 3, 2008.   Notwithstanding the referee's decision, the board determined that the plaintiff was discharged for wilful misconduct in the course of her employment.   As such, it reversed the referee's decision and sustained the appeal.   The board adopted the referee's findings in part, and made the following additional findings of fact.   Service advisors keep a list of all up sold services, including the invoice number, tech number, amount of the commission and the number and type of service.   The plaintiff received a warning on June 2, 2008 for listing services that were not available for up sell credit on her May list.   On or about June 7, 2008, the service manager noticed that the plaintiff had an unusually high number of customers on her up sell list.   He found that three of those up sells were the same services for which the customers had prescheduled appointments.

On October 31, 2008, the plaintiff filed the present appeal.   The plaintiff filed a brief on June 5, 2009.   The defendant filed a memorandum of law on September 8, 2009.   The appeal was heard by this court on October 13, 2009.

“[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 quotation 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 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 wilful 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 the board's conclusion of law that the final incident rose to the level of wilful misconduct.   She argues that she did not intentionally falsify her upsell records.   She further argues that the “upsell system in itself created a problem for any employee claiming an upsell” because the system has no accurate way to measure whether an employee has willfully violated the procedure.¹

To the extent that the plaintiff challenges the findings of fact, it is noted that she 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 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.

This court in order to achieve justice grants the plaintiff permission to file a motion for correction of the board's findings with the board.   If the plaintiff elects to file this motion within a sixty-day time period, the court will then consider any claim the plaintiff may raise on appeal.   Such claims may include that the board incorrectly made findings of fact regarding credibility when the referee who heard the evidence was in the best position to determine the credibility of the plaintiff and that the plaintiff's actions did not rise to the level of wilful misconduct, as defined by § 31-236(a)(16).   If such a motion to correct has been filed with the board, this court will hear new oral arguments regarding the plaintiff's appeal.   If a motion to correct the board's findings is not filed with the board within sixty days, then this court will have no choice but to affirm the board's decision.

This court will retain jurisdiction of this matter.

Robert I. Berdon

Judge Trial Referee

FOOTNOTES

FN1. The plaintiff also argues that the board relied on Martone's affidavit.   In its decision, the board specifies that it did not consider the allegations contained in Martone's affidavit because they were outside of the record, as they were not presented at the hearing before the referee..  FN1. The plaintiff also argues that the board relied on Martone's affidavit.   In its decision, the board specifies that it did not consider the allegations contained in Martone's affidavit because they were outside of the record, as they were not presented at the hearing before the referee.

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