Yassir Raki v. Administrator, Unemployment Compensation Act et al. (2010)

MEMORANDUM OF DECISION

The present case comes to the Superior Court as an appeal from the decision of the Employment Security Appeals Division-Board of Review affirming the decision of the Appeals Division Referee denying the appellant benefits under the Unemployment Compensation Act. The appeal has been filed pursuant to Section 31-249b of the Connecticut General Statutes.

The record reveals that the appellant, Yassir Raki, filed a claim for Unemployment Compensation benefits in September 2009.   Following a hearing, on October 6, 2009 an adjudicator granted the application for benefits, finding that the claimant had been discharged for reason other than wilful misconduct.   The employer filed a timely appeal of that decision and a referee heard the appeal on November 19, 2009.   The referee sustained the employer's appeal in a written decision issued on December 3, 2009.   The claimant then appealed to the Board of Review.   On February 4, 2010 the Board of Review issued its decision affirming the decision of the referee and dismissing the appeal to the Board.   This appeal followed and the parties appeared before the court and oral argument was heard on August 4, 2010.

In its decision the Board of Review adopted the referee's findings of fact.   Those findings were:

1.  The claimant worked as a full-time cashier for Dunkin Donuts/E & E Donuts;  Inc. from January 26, 2009, until the employer discharged him on September 12, 2009.

2. The claimant performed his work at the employer's store on North Colony Road in Wallingford.

3. The claimant performed his work at the employer's overnight shift which began at 10:00 p.m.

4.  The claimant began work at 10:00 p.m. on September 11, 2009.   The employer assigned him to the drive-thru window.   His shift ended at 6:00 a.m.

5.  At midnight on September 12, 2009, the claimant telephoned Eddie Torres, the employer's general manager, and lodged a complaint about shift leader Anthony.   The claimant told Torres that Anthony was taking too long to change the register drawers, which hindered the claimant in complying with the employer's standard that customers will be served within two and one-half minutes.

6. Torres assured the claimant that it was not his fault if he could not adhere to the two and one-half minute standard.   Torres also told the claimant he would speak to Anthony and requested the claimant give Anthony the phone.   Torres did not inform the claimant he was fired, terminated or no longer had a job.   Torres waited for several minutes and then the call was disconnected.   Torres called the store back immediately and was informed by another employee that the claimant had departed the store.

7. Torres spoke to Anthony who told Torres that the claimant had not informed him that Torres was waiting to speak to him on the telephone.   Torres also reviewed the employer's video surveillance film in which he observed the claimant hanging up the phone, punching out and then departing the premises.

8. The claimant did not report to work as scheduled for his shift that began at 10:00 p.m. on September 12, 2009.   He did not have any further communication with the employer.

9. The employer had continuing work for the claimant.

10. The claimant liked his job.

In appeals pursuant to Section 31-249b of the Connecticut General Statutes “the Superior Court does not retry the matter de novo.   It is not its function to adjudicate questions of fact.   Nor may it substitute its own conclusions for those of the [Board].”  Guevara v. Administrator, 172 Conn. 492, 495 (1977);  United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385 (1988).   The controlling provision of the Connecticut Practice Book, Section 22-9, provides in part:

Such appeals are heard by the court upon the certified copy of the record filed by the board.   The court does not 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 the finding should be corrected, or whether there was any evidence to support in law the conclusions reached.   It cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses.

In the event that the appellant wishes the Superior Court to correct the findings of fact made by the Board of Review, the appellant must comply with the provision of Section 22-4 of the Connecticut Practice Book, which provides in 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, unless the time is extended for cause by the board, file with the board a motion for the correction of the finding ․

Where, as in the present case, the appellant fails to file such a motion for correction of the record, the appellant is precluded from challenging the Board's findings of fact.  Calnan v. Administrator, 43 Conn.App. 779, 783 (1996).   The Superior Court lacks authority to consider challenges to the findings of fact by the Board in the absence of a timely motion to correct the record.  Shah v. Administrator, 114 Conn.App. 170, 176 (2009).   This court's function, therefore, is to determine if the record establishes that there is a logical and rational basis for the decision of the Board.  Taminski v. Administrator, 168 Conn. 324, 326 (1975);  Calnan v. Administrator, supra, at page 785.

Throughout the administrative proceedings and this appeal to the Superior Court the claimant has represented himself.   Connecticut courts have an “established policy ․ to be solicitous of [self represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self represented] party.”  New Haven v. Bonner, 272 Conn. 489 (2004).   This policy, however, is applicable only when it does not interfere with the rights of other parties.  “Although our courts allow [self represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.”  Mercer v. Crosley, 110 Conn.App. 283, 294 n.9 (2008).   The Connecticut Appellate Court repeatedly has held that the failure of a self represented party to file a motion for correction precludes further review of the Board's findings by the Superior Court.  Shah v. Administrator, supra, at page 177;  Reeder v. Administrator, 88 Conn.App. 556, 558 (2005);  Calnan v. Administrator, supra, at page 785.

The ultimate obligation of the Superior Court is to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.  JSF Promotions, Inc. v. Administrator, 265 Conn. 413, 417-18 (2003);  United Parcel Service, Inc. v. Administrator, supra, at page 385-86.   The construction of a statute or regulation by an administrative agency, while not controlling, is entitled to considerable deference.  Griffin Hospital v. Commission on Hospitals and Health Care, 200 Conn. 489, 496 (1986).   The application of statutory criteria to determine a claimant's eligibility for unemployment compensation involves mixed questions of law and fact in which the expertise of the administrative agency is highly relevant.   United Parcel Service, Inc. v. Administrator, supra, at page 386.

The Board of Review concluded that the claimant left his job voluntarily and further found that the claimant left the job without good cause attributable to the employer.   In the present appeal to the Superior Court, the appellant challenges these ultimate findings.   As noted previously, this court does not retry the matter de novo and, under the present circumstances, the court is precluded from changing the Board of Review's findings of fact.   Since the findings of fact fully support the ultimate finding and ruling of the Board of Review, this court must find that the decision of the Board of Review is logical and rational.

An individual is not eligible for unemployment compensation benefits when it is found that “the individual has left suitable work voluntarily and without good cause attributable to the employer ․”.  Section 31-236(a)(2)(A) of the Connecticut General Statutes.   The Board of Review has concluded that, pursuant to this statutory provision, the appellant is not eligible for unemployment compensation benefits.   That conclusion is not unreasonable, arbitrary, illegal nor an abuse of discretion.

The decision of the Board of Review is affirmed and the appellant's appeal is dismissed.

It is so Ordered this 13th day of October 2010

BY THE COURT

Arthur C. Hadden

Judge of the Superior Court

Hadden, Arthur C., J.