Christa J. Harrington v. Administrator, Unemployment Compensation Act (2010)

MEMORANDUM OF DECISION

FACTS:

The appellant, Christa J. Harrington was an HR Generalist in the human resources department of Community Renewal Team [CRT]. CRT had a hiring policy which required that management be informed prior to hiring anyone with a criminal conviction.¹  CRT claims that, without notifying management, the appellant hired a job applicant who had a misdemeanor shoplifting charge pending in criminal court.   Record, p. 38.   CRT terminated the employment of the appellant for willfully violating its policy by not informing management of the job applicant's criminal conviction.

The appellant was granted unemployment compensation benefits and CRT appealed.   Following an evidentiary hearing, the Appeals Referee found there was no willful violation of the CRT policy.   The Referee specifically found that the job applicant did not have a criminal conviction, merely a pending charge.

CRT next appealed the Referee's decision to the Board of Review (Board).   Based solely upon a review of the record and a recording of the proceeding before the Referee, the Board reversed the decision of the Referee and made a finding that the job applicant had a criminal conviction and the failure to inform CRT management of the conviction was willful misconduct on the part of the appellant.

The appellant next filed a motion to reopen the Board's decision together with a memorandum of law and certified copy of a transcript of the job applicant's criminal proceeding in which the Court dismissed the job applicant's misdemeanor charge.   The Board denied the appellant's motion to reopen and added an additional basis for its decision, that even if the appellant's conduct did not violate CRT's policy, her failure to notify CRT management of the pending criminal charge constituted deliberate misconduct in willful disregard of CRT's interests.

STANDARD OF REVIEW:

Under Conn. Gen.Stat. § 31-249b, the Superior Court does not undertake de novo review for unemployment compensation appeals from the Employment Security Board of Review.   Rather, based upon the record submitted by the parties, the court must determine whether the Board could reasonably arrive at the factual findings and the conclusions of law that form the basis of this appeal.   See Finklestein v. Administrator, 192 Conn. 104, 112-13 (1984).

In the absence of a motion to correct the findings of the board, this court is not entitled to “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 ․ there was any evidence to support in law the conclusions reached.  [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses.”  Conn. Practice Book § 22-9.   In such a case, the Superior Court reviews that decision only to determine if the Board's decision was unreasonable, arbitrary, or illegal.  Guevara v. Administrator, 172 Conn. 492, 495-96, 374 A.2d 1101 (1977).

ANALYSIS:

It is clear that, from the inception of these proceedings and even prior thereto, most of the players in this matter had no clear understanding of the precipitating issue.²  That issue is whether the job applicant had a criminal record, i.e., had been convicted of a crime.   The job applicant, in his application, did not check off either “Yes” or “No” for the question, “Have you been convicted of a misdemeanor?”   Rather, he wrote, “It was a minor misdemeanor and I prefer to answer in person.   It will be erased on 011/08/09.”   Record, p. 122.   A subsequent background check confirmed that the applicant did not have a conviction.   Rather, he had a pending charge of larceny in the 6th degree.   Record, pp. 38-39.   The job applicant had been granted accelerated rehabilitation which, if he successfully completed the obligations thereunder, would lead to a dismissal of the charges.  General Statutes Sec. 54-56e(f).  It is not in dispute that the job applicant's charges were dismissed and he has no record of any convictions.   See Exhibit B of appellant's motion to correct findings, certified transcript of criminal proceedings (# 102.00).

It is the appellant's position that, as the job applicant did not have any record which was reportable by the appellant to CRT management, the appellant did not violate CRT's policy, even if the appellant erroneously believed the job applicant had a misdemeanor conviction.   The appellant's statement is that she believed the job applicant's record of conviction would be “wiped clean” prior to his employment with CRT. Record, p. 7. Although that is not what would have occurred (as convictions are not wiped clean, rather, charges are dismissed), there is no evidence that the appellant intended to deceive CRT or violate its policy.

The Board of Review has taken the position that the job applicant was convicted of larceny in the 6th degree and, therefore, the appellant should have so informed CRT management.   As she did not, the Board has decided that she willfully violated CRT's policy and is rightfully discharged without benefits.

The appellee, Administrator, Unemployment Compensation Act [Administrator], argues that the Board of Review's finding that the job applicant had a misdemeanor conviction must be accepted by the court because it was not timely challenged by the appellant.   The appellee is correct.

P.B. § 22-4 states, in relevant 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, file with the board a motion for the correction of the finding ․” [Emphasis added.]   In this matter, the appellant filed her motion for correction of the finding (102.00) with the court and sent a copy to the board.   It should be noted that the motion is directed to the “Board” but has the Superior Court caption and the original was filed with the court, not the Board.   The appellant urges the court to accept the view that the motion was filed with the Board.

In Shah v. Administrator Unemployment Compensation Act et al., 114 Conn.App. 170, 968 A.2d 971 (2009), the pro se plaintiff failed to file a motion for correction with the board of review as required by P.B. § 22-4.   Rather, she filed a motion with the court to open the decision of the board.   The trial court found that, in so doing, the plaintiff complied with the requirement of P.B. § 22-4.   The appellate court disagreed.   Citing the appellate court case of Calnan v. Administrator, Unemployment Compensation Act, 43 Conn.App. 779, 785, 686 A.2d 134 (1996), the court in Shah states that, absent the prerequisite filing of a motion for correction with the Board of Review, the appellant cannot challenge the Board's findings on appeal.   Shah, 114 Conn.App. at 175.   The court further cites the supreme court case of JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422, 828 A.2d 609 (2003), for the holding that the appellant's failure to file a timely motion for correction of the board's findings in accordance with P.B. § 22-4 prevents further review of those facts found by the Board.  Shah, 114 Conn.App. at 176.

While it is clear that the Board made changes to the record which were erroneous, the appellant has not complied with P.B. § 22-4 and therefore, this court is not entitled to entertain any challenge to it.   Even if those findings were subject to review, the Board's additional basis for denial of benefits because of deliberate misconduct cannot be reviewed by this court because the appellant failed to comply with P.B. § 22-4 and there is no decision of the board on a motion for correction, pursuant to P.B. § 22-7, to consider.

CONCLUSION:

The appellant's appeal is dismissed.

Robert E. Young, Judge

FOOTNOTES

FN1. CRT's “Recruiting Process” states, in relevant part, “10.   Interviews are handled depending on the Hiring Managers in one of the following manners:  ․ e. Top candidate is chosen-references, criminal, and driver (if applicable) is checked. [sic] If a conviction appears on the background check, the manager must be notified and sign off as well as the Director of Human Resources before an exception may be made to hire the candidate.”   [Emphasis added.]   Record, p. 117.The record purportedly contains CTR's policy regarding the hiring of applicants with criminal involvement, in an Employee Handbook, the date of which, January 1, 2009, is effective after the appellant's termination date of October 23, 2008, Record p. 31.   That portion of the Handbook states:In the event that an arrest, pending criminal charge or criminal conviction is disclosed by the applicant, CRT shall consider the severity of the matter and it's [sic] relevance to the prospective employment and shall make a determination on an individual basis as to the suitability of the applicant for the position sought..  FN1. CRT's “Recruiting Process” states, in relevant part, “10.   Interviews are handled depending on the Hiring Managers in one of the following manners:  ․ e. Top candidate is chosen-references, criminal, and driver (if applicable) is checked. [sic] If a conviction appears on the background check, the manager must be notified and sign off as well as the Director of Human Resources before an exception may be made to hire the candidate.”   [Emphasis added.]   Record, p. 117.The record purportedly contains CTR's policy regarding the hiring of applicants with criminal involvement, in an Employee Handbook, the date of which, January 1, 2009, is effective after the appellant's termination date of October 23, 2008, Record p. 31.   That portion of the Handbook states:In the event that an arrest, pending criminal charge or criminal conviction is disclosed by the applicant, CRT shall consider the severity of the matter and it's [sic] relevance to the prospective employment and shall make a determination on an individual basis as to the suitability of the applicant for the position sought.

FN2. Mary A. Kozich, Interium [sic] Director, Human Resources, correctly describes the precipitating incident as a larceny “charge,” not a conviction in her October 24, 2008 letter to the appellant, terminating the appellant's employment.   Record, p. 31..  FN2. Mary A. Kozich, Interium [sic] Director, Human Resources, correctly describes the precipitating incident as a larceny “charge,” not a conviction in her October 24, 2008 letter to the appellant, terminating the appellant's employment.   Record, p. 31.

Young, Robert E., J.