Antoni Lebiedz v. Administrator, Unemployment Compensation Act (2010)

MEMORANDUM OF DECISION

In this case, Antoni Lebiedz, [hereinafter plaintiff] has appealed the decision of the Employment Security Appeals Division Board of Review [hereinafter Board] affirming the appeals referee's decision to affirm the Administrator's denial of unemployment benefits.   For the reasons stated herein, the court upholds the decision of the Board and the plaintiff's appeal is dismissed.

The record discloses the following facts.   The plaintiff was employed for Rushford Center, Inc. [hereinafter employer] as a case manager from October 23, 2000 to January 23, 2009.   Prior to January 20, 2009, the plaintiff was assigned the task of transporting one of his high risk clients to and from her appointments.   It was because of the client's high risk status and her history of missed appointments, that the plaintiff was assigned the task of transporting her to appointments.   On January 20, 2009, Dana Martin-Noti, a team leader for the employer, received a telephone call from Stacey Bouchard, a transportation specialist, who informed Martin-Noti that the plaintiff demanded that Bouchard pick up the client at 12:30 p.m. and transport her to her appointment.   After the call from Bouchard, Martin-Noti, spoke with the plaintiff and reminded him that he had to transport the client to her appointments.   The plaintiff briefly argued with Martin-Noti, and stated that the transportation specialist should provide transportation.   Marti-Noti again told the plaintiff that transporting the client was his responsibility and that she no longer wanted to discuss the matter.   The plaintiff was required to pick up the client at 12:30 p.m. on January 20, 2009 and transport her to Rushford Center for group treatment.

At 1:00 p.m. on January 20, 2009, the plaintiff called Martin-Noti and informed her that he had just went to the client's home to transport her to her appointment and that the client refused to go to the appointment.   The plaintiff then requested two hours personal time which Martin-Noti denied.   After speaking with the plaintiff, Martin-Noti called the client's contact number and spoke with the client's mother who informed Martin-Noti that the client might be at the hospital.   Martin-Noti then called two clinicians who informed her that the client was at the emergency department at the hospital and that the client contacted an ambulance herself to transport her to the hospital.   Martin-Noti also learned that the client arrived at the hospital at 11:54 a.m.

At 3:00 p.m., on January 20, 2009, Martin-Noti spoke with the plaintiff in her office and asked him to write down where he went and which clients he saw that day.   The plaintiff claimed that he did not remember.   Martin-Noti repeated her order and advised the plaintiff that if he refused to comply, his refusal would be considered insubordination.   The plaintiff then stated that he was sick.   Martin-Noti again repeated her order and the plaintiff again stated that he was sick and repeated that statement several times thereafter.   Martin-Noti then directed the plaintiff to follow her to speak with John Conner, the manager of adult mental health services.   Martin-Noti informed Conner of the order she issued to the plaintiff and the plaintiff then informed Connor that he was sick and wanted to go home.   Connor allowed the plaintiff to go home.   On January 23, 2009, the employer discharged the plaintiff for failing to transport the client to her appointment, making a false statement and insubordination.

In February 2009, the plaintiff filed for unemployment benefits.   By a decision dated March 5, 2009, the administrator ruled that the plaintiff was discharged “for deliberate misconduct in wilful disregard of the employer's interest” (Record, p. 41), and therefore concluded that the plaintiff was discharged “for wilful misconduct in the course of [his] employment.”  (Id.) The administrator further concluded that the plaintiff was ineligible for unemployment benefits effective January 25, 2009.   On March 6, 2009, the plaintiff appealed the administrator's decision to the Employment Security Appeals Division.   On March 24, 2009, the appeals referee conducted a hearing de novo to which the plaintiff and the employer attended.   By a decision issued on April 3, 2009, the appeals referee affirmed the administrator's ruling, with a modification as to the period of ineligibility.   The appeals referee found the effective date of ineligibility to be January 18, 2009.   The plaintiff filed a timely appeal to the Board on April 7, 2009.  General Statutes § 31-249.   The plaintiff appealed the decision of the Board to the Superior Court.   In his court appeal, the plaintiff contends that the Board did not allow him to present all of his evidence against the employer.   The plaintiff further contends that the administrator and the appeals referee engaged in unfair practices and were biased.   Although the plaintiff failed to file a motion to correct the Board's findings, he contends that he complained to his supervisor, Nancy Powell about allegedly being insulted by one of her employees.

The court's standard of review in an unemployment compensation appeal is limited.  “To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the Board of review.”  Latina v. Administrator, Unemployment Compensation Act, 54 Conn.App. 154, 159, 733 A.2d 885 (1999), quoting Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 283 Conn. 273, 276, 679 A.2d 347 (1996).  “The court must not retry the facts nor hear evidence ․ 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.”  (Citations omitted.)   United Parcel Service, Inc. v. Administrator Unemployment Compensation Act, 209 Conn. 381, 385-86, 551 A.2d 724 (1988).

The plaintiff disputes the employers claim that he engaged in willful misconduct by failing to perform his duties and made factual claims in his brief and during oral argument that are different from those found by the Board.   The plaintiff claims that he did not fail to pick up the client but rather the client called him and informed him not to come to pick her up for transport.   The plaintiff further claims that Martin-Noti “falsely reported” to the Rushford authorities and Labor Department “changing all of the facts.”   The plaintiff further claims that he was fired in retaliation for reporting employee fraud and that he was discriminated against by his employer with respect to his ethnicity and age.

The plaintiff did not file a motion to correct the Board's factual findings, as Practice Book § 22-4 requires.¹  The absence of such a motion forecloses this court from considering any facts that are not in the certified record.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413 422-23, 828 A.2d 609 (2003) ( [“the plaintiff's] failure to file a timely motion for correction of the Board's findings in accordance with § 22-4 prevents further review of these facts found by the Board.”).   Therefore, the court may only consider whether the record contains evidence to support the Board's conclusions.

Furthermore, “[w]hether the circumstances of an employee's termination constitute willful misconduct on the employee's part is a mixed question of law and fact.   As a general rule, [t]he application of statutory criteria to determine a claimant's eligibility for unemployment compensation ․ involves mixed questions of fact and law in which the expertise of the administrative agency is highly relevant.”  (Internal quotation marks omitted.)  United Parcel Services, Inc. v. Administrator, Unemployment Compensation Act, supra, 209 Conn. 386.  “Moreover, the construction placed upon a statute or regulation by the agency responsible for its enforcement and administration is entitled to great deference.”   See Griffin Hospital v. Commission on Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S.Ct. 781, 93 L.Ed.2d 819 (1986);  Strawberry Hill Animal Hospital LLC v. Administrator, Unemployment Compensation Act, Superior Court judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4007548 (August 8, 2006, Lewis, J.T.R.).

This appeal is governed by General Statutes § 31-236(a)(2)(B), which provides in relevant part that “[a]n individual shall be ineligible for benefits ․ if, in the opinion of the administrator, the individual has been discharged ․ for ․ willful misconduct in the course of the individual's employment.”  Section 31-236(a)(16) defines willful misconduct as 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 ․” (Emphasis added.)

Section 31-236-26 of the Regulations of Connecticut State Agencies provides in relevant part:  “To find that any act or omission is willful misconduct in the course of employment as defined in § 31-236-26c of the Regulations of Connecticut State Agencies, the Administrator shall find that:  (1) the individual committed deliberate misconduct in willful disregard of the employer's interest, as defined in § 31-236-26a of the Regulations of Connecticut State Agencies;  or (2) the individual committed a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied ․” ² (Emphasis added.)

The Board's conclusion that the plaintiff was fired for willful misconduct under the deliberate misconduct standard was based on the appeals referee's findings, which the Board adopted as their own.   Specifically, the referee and the Board found that:

2.  Prior to January 20, 2009, the employer assigned the claimant the task of transporting a high risk client to her appointments ․ the employer wanted the client's case manager to transport her to her appointments.

3. On January 20, 2009, Dana Martin-Noti, team leader, received a telephone call from a transportation specialist ․ who informed her that the claimant had demanded that [she] pick up the client at 12:30 p.m. and take her to her appointment.   After the call, Martin-Noti spoke with the claimant and reminded the claimant that he had to transport the client to her appointments.   The claimant briefly argued that the transportation specialist should provide transportation.   Martin-Noti again told the claimant transporting the client was his responsibility and that she no longer wanted to discuss the matter.

4. The claimant was supposed to pick up the client at 12:30 p.m. on January 20, 2009, and transport her to Rushford Center for group treatment.

5. At 1:00 p.m. on January 20, 2009, the claimant called Martin-Noti and informed her that he just went to the client's home to transport her to her appointment and she refused to go to the appointment.   He then requested two hours personal time and Martin-Noti denied his request.   After speaking with the claimant, Martin-Noti called the client's contact number and spoke with the client's mother who told her that the client might be at the hospital ․ Martin-Noti spoke with the crisis department manager who confirmed the client was in the emergency department and had called an ambulance herself to transport her to the hospital.   Martin-Noti also learned the client arrived at the emergency department at 11:54 a.m.

6.  At 3:00 p.m. on January 20, 2009, Martin-Noti spoke with the claimant in her office and told him to write down where he went and which clients he saw that day.   The claimant stated he did not remember.   Martin-Noti repeated her order and informed the claimant that a refusal would be considered insubordination.   The claimant then stated he was sick.   Martin-Noti repeated her order and the claimant again stated he was sick and repeated the statement several times ․

(Record, p. 53.)   The referee and Board determined that “the claimant committed an act of dishonesty when he falsely reported he went to the client's home and spoke with the client at her home.”  (Record, p. 54.)   In addition, the referee and Board found that:

The employer's order to the claimant to write down where he went and which clients he saw on January 20, 2009, was reasonable.   The employer had the right to demand the information since the employer had reasonable suspicion that the claimant had lied to the employer.   The claimant did not provide convincing evidence that he was so ill that he could not comply with the employer's order.   Therefore, the referee finds the claimant did not have good cause for refusing to comply with the reasonable order.

(Id. 54).   Thus, the referee and Board determined that “the employer discharged the claimant for deliberate misconduct which constituted wilful misconduct in the course of his employment.”  (Id. 55).

The Superior Court, on hearing appeals from the Board, is bound by factual findings of the appeals referee and the Board;  this includes evaluating the credibility assigned to witnesses, such as Martin-Noti whose testimony the appeals referee found to be credible.   The Board reviewed the record in this appeal, including the tape recording of the appeals referee's hearing and adopted the appeals referee's findings as their own.   By accepting the findings of the appeals referee, the Board accepted the credibility the appeals referee assigned to the witnesses who testified at the hearing.  “A reviewing court must accept the findings made by the Board as to witness credibility and must defer to the agency's conclusions to be drawn from the evidence.  Howell v. Administrator, Unemployment Compensation Act, 174 Conn. 529, [391 A.2d] (1978);  Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, [554 A.2d 292] (1989).”   Cooper v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New London at Norwich, Docket No. CV 98 115055 (February 24, 2000, Corradino, J.).

A review of the certified findings of fact demonstrates that there is sufficient evidence to support the Board's conclusion that the plaintiff engaged in deliberate misconduct in willful disregard of the employer's interest.   The Board found that the plaintiff committed an act of dishonesty when he falsely reported that he went to the client's home and spoke with the client at her home.   The Board further found that the employer's order to the plaintiff to write down where he went and which clients he saw on January 20, 2009, was reasonable.   Thus, based on these findings, the Board concluded that the employer discharged the plaintiff for deliberate misconduct which constituted willful misconduct in the course of his employment.

Given the factual findings and credibility the Board assigned to the witnesses when it accepted the factual findings of the appeals referee, which this court is required by law to accept, there is no basis for this court to conclude that the Board acted unreasonably, arbitrarily, illegally or otherwise abused its discretion in affirming the appeals referee's conclusion that the plaintiff's willful disregard of his job duties, and his false reporting of his whereabouts on the day in question, rose to the level of willful misconduct in the course of his employment.

For the foregoing reasons, the plaintiff's appeal is dismissed.

Wilson, J.

FOOTNOTES

FN1. Practice Book § 22-4 provides:  “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 with 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 and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for ․”.  FN1. Practice Book § 22-4 provides:  “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 with 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 and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for ․”

FN2. “Valid [state] agency regulations have the force of statutes and constitute law.”  Acro Technology v. Administrator Unemployment Act, 25 Conn.App. 130, 135, 593 A.2d 154 (1991)..  FN2. “Valid [state] agency regulations have the force of statutes and constitute law.”  Acro Technology v. Administrator Unemployment Act, 25 Conn.App. 130, 135, 593 A.2d 154 (1991).

Wilson, Robin L., J.