Leroy Mims v. Administrator, Unemployment Compensation Act (2010)

MEMORANDUM OF DECISION

PROCEDURAL AND FACTUAL BACKGROUND

In this case, Leroy Mims (hereinafter plaintiff) has appealed the decision of the Employment Security Appeals Division Board of Review (hereinafter Board) reversing the appeals referee's decision to reverse 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 as a full-time area manager for the employer, Sanitary Maintenance Services, LLC (“employer”) from November 1, 1965, until March 20, 2009.   The plaintiff provided various maintenance services for clients who had maintenance contracts with the employer.   On March 6, 2009, the plaintiff was advised by the employer that his supervisory capacity was going to be reduced to just a few buildings and that he would be changed from a salaried employee to an hourly employee.   In addition, the plaintiff was also informed that the employer did not need him visiting every site every day and that certain sites were to be visited once per week and others nightly.   The plaintiff was also advised to call in every day with locations and the time spent at the location.   The employer noticed something was wrong when the plaintiff was continuing to visit some of these sites on a daily basis.

On March 17, 2009, the employer's chief executive officer, Timothy Benson had two friends follow the plaintiff for a few hours to determine what stops the plaintiff was making and whether he was accurately reporting his activities during the day.   Based on the report Mr. Benson received from his friends, he decided to personally conduct an investigation the following day.   On March 18, 2009, Benson drove past the plaintiff's house, which is located in New Haven, and saw the plaintiff's vehicle parked in front.   Benson called the plaintiff and asked the plaintiff his whereabouts.   The plaintiff stated that he was in Branford.   Benson then asked the plaintiff to meet him in West Haven to sign something.   The plaintiff then changed his story and stated that he was in East Haven and would meet Benson promptly.   Benson and the plaintiff met at the West Haven post office approximately ten minutes after they spoke on the phone.   According to Benson, the plaintiff arrived at the West Haven meeting spot far more quickly than he would have if the plaintiff had been in West Haven when he and Benson spoke.   On March 20, 2009 Benson terminated the plaintiff because the plaintiff lied to him on March 18, 2009 about his whereabouts while working.   The plaintiff received a warning in 2001 for falsifying his hourly time reports.

On March 28, 2009, the plaintiff filed a claim for unemployment benefits.   By a decision dated April 13, 2009, the administrator denied the plaintiff's claim for benefits on grounds that the plaintiff was “discharged for falsifying hourly reports and being dishonest to the C.E.O. about his whereabouts.   The actions were intentional.   Therefore, deliberate, willful misconduct is evident.”  (Record, p. 14.)   The administrator therefore concluded that the plaintiff was discharged for wilful misconduct in the course of his employment.   On April 16, 2009, the plaintiff appealed the administrator's decision to the Employment Security Appeals Division.   On May 4, 2009, the appeals referee conducted a hearing de novo to which the plaintiff and Benson appeared and testified.   By a decision issued on May 15, 2009, the appeals referee found that the employer failed to prove by a preponderance of the evidence that the plaintiff was discharged for wilful misconduct in the course of his employment and reversed the administrator's ruling.   The employer filed a timely appeal to the Board on May 20, 2009.  General Statutes § 31-249.   Acting under authority contained in General Statutes § 31-249, the Board reviewed the record in the appeal, including the tape recording of the referee's hearing, and determined that the appeals referee's findings were not supported by the evidence.   The Board concluded that the plaintiff was discharged for deliberate misconduct in the course of his employment.   The Board therefore determined that the plaintiff was disqualified from receiving unemployment compensation benefits and reversed the decision of the appeals referee.   On July 20, 2009, the plaintiff appealed the decision of the Board to the Superior Court.   In his court appeal, the plaintiff denies that he lied to his employer about his whereabouts on March 18, 2009.   The hearing on the appeal was held on February 22, 2010.

DISCUSSION

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 employer's 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 lie to his employer about his whereabouts on March 18, 2009.   The plaintiff claims that due to a medical condition, for which he takes medication, he has to use the bathroom frequently, and on March 18, 2009 he went home to change his clothes because he did not make it to the bathroom.  (Record, p. 45.)   The plaintiff further claims that he values his job a great deal as he had been employed for forty years prior to his termination and would never steal time from his employer.   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.

“Whether 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 of fact nos. 1, 3, and 9 and the following findings of fact which the Board adopted in lieu of the rest of the referee's findings:

2.  The employer terminated the claimant because he lied to him on March 18, 2009.

4. The employer changed the plaintiff's schedule and directed him to visit some of these sites daily.

5. The employer's chief executive officer, Benson, asked two friends to follow the claimant on March 17, 2009, to determine what stops he was making and whether he was accurately reporting his activities during the day.   Based on the report he received from his friends, Benson decided to personally conduct an investigation the following day.

6. On March 18, 2009, Benson drove past the claimant's house and saw his vehicle parked in front.   He called the claimant and asked him where he was.   The claimant stated that he was in Branford, CT. Benson asked the claimant to meet him in West Haven to sign something.   The claimant then stated that he was in East Haven and would meet Benson promptly.

7. Benson and the claimant met at the post office in West Haven approximately ten minutes after they spoke on the phone.

(Record, pp. 30, 39-40.)   Based upon these findings, the Board therefore found that “the employer discharged the claimant for dishonesty,” and concluded that “[a]n individual who commits an act of dishonesty in the course of his or her employment that adversely affects the employer's interests or violates the standards of behavior that an employer can reasonably expect from an employee is guilty of misconduct.”  (Record, p. 40.)   The Board therefore determined that “the employer discharged the claimant for deliberate misconduct which constituted wilful misconduct in the course of his employment,” and reversed the appeals referee's decision.  (Record, p. 55.)

The Superior Court, on hearing appeals from the Board, is bound by factual findings of the Board;  this includes evaluating the credibility assigned to witnesses, such as Benson whose testimony the Board found to be credible and the claimant, whose testimony the Board did not find credible.   The Board reviewed the record in this appeal, including the tape recording of the appeals referee's hearing.   The Board determined that the referee's findings were not supported by the evidence and substituted its own findings, with the exception of three of the referee's findings, in lieu of the referee's findings.³  “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 165] (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.   Specifically, the Board found that the “claimant deliberately misrepresented his whereabouts to the employer on [March 18, 2009],” and that the “employer terminated the claimant because he lied to him on March 18, 2009.”  (Record, p.p. 39-40).   The Board also found that the plaintiff committed an act of dishonesty when he deliberately misrepresented his whereabouts to his employer.   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, 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 reversing the appeals referee's decision and concluding that the plaintiff's false reporting of his whereabouts on the day in question rose to the level of willful misconduct in the course of his employment.

CONCLUSION

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).

FN3. While the Board generally will not overturn a referee's credibility determination where the referee assessed all relevant evidence and has adequately developed the record, it can however, modify the findings of the referee, and not defer to the referee's credibility determination where the referee has misinterpreted the record or assigned inappropriate weight to a factor of marginal significance.   Here, the Board determined that the employer's witness Timothy Benson was more credible than the plaintiff because he offered first-hand testimony regarding his observations and his conversation with the plaintiff regarding the plaintiff's whereabouts.   The plaintiff on the other hand, only testified that he was going from Branford to East Haven when the referee reminded him of the statement he gave at the administrator's predetermination hearing.   The Board further found that the referee placed too much weight on the plaintiff's forty-year employment with the employer, a factor which the Board found to be of “marginal significance when determining credibility.”  (Record, p. 49.).  FN3. While the Board generally will not overturn a referee's credibility determination where the referee assessed all relevant evidence and has adequately developed the record, it can however, modify the findings of the referee, and not defer to the referee's credibility determination where the referee has misinterpreted the record or assigned inappropriate weight to a factor of marginal significance.   Here, the Board determined that the employer's witness Timothy Benson was more credible than the plaintiff because he offered first-hand testimony regarding his observations and his conversation with the plaintiff regarding the plaintiff's whereabouts.   The plaintiff on the other hand, only testified that he was going from Branford to East Haven when the referee reminded him of the statement he gave at the administrator's predetermination hearing.   The Board further found that the referee placed too much weight on the plaintiff's forty-year employment with the employer, a factor which the Board found to be of “marginal significance when determining credibility.”  (Record, p. 49.)

Wilson, Robin L., J.