Jacqueline Roy 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, Jacqueline Roy, filed a claim for Unemployment Compensation benefits in April 2009.   Following a hearing, on May 13, 2009 an adjudicator denied the application for benefits, finding that the claimant had quit for reasons other than good cause attributable to the employer.   The claimant filed a timely appeal of that decision and a referee heard the appeal on July 10 and July 28, 2009.   The referee affirmed the adjudicator's determination in a written decision issued on July 31, 2009.   The claimant then appealed to the Board of Review.   On October 2, 2009, 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 for the employer from June 30, 2008, until April 16, 2009, as a billing clerk $18.00 hourly.

2. The business is family owned.   Receptionist Cillo is the daughter of controller Malerba.   Each are also related to others in the company.   The claimant is not a relative.

3. For some time, Cillo had been upset with the claimant because she felt that the claimant was stealing time from the employer by coming back late from lunch, coming in late, leaving early, taking excess breaks, etc.

4. Cillo got very upset with the claimant on April 16, 2009.   The claimant returned late from lunch.   Because the claimant was her relief person she could not leave until the claimant got back from lunch.   The claimant's late arrival caused Cillo to miss a scheduled orthodontist appointment.

5. Cillo told the claimant, “the next time you leave for lunch you need to tell somebody;  I'm tired of you stealing time.”

6. The claimant described Cillo as a “bitch” to a co-worker.

7. Cillo heard something disparaging but thought she had been called, “trash.”

8. The disagreement subsequently developed into both parties arguing with each other from a distance of from 6 to 10 feet.

9. No threats of bodily harm were made by either.   The claimant did tell Cillo that, “if you come at me again I'm calling the police.”

10. Controller Malerba stepped in between the two and attempted to diffuse the situation.   She told both to be quiet.

11. Malerba felt that both individuals had overstepped decorum and sent Cillo home for the day.

12. The claimant told Malerba, “I'm outta here.”

13. Malerba told the claimant, “I don't want you to go.”

14. The claimant insisted on quitting and demanded a “pink slip” which Malerba supplied with regret.

15. Malerba agreed that the claimant would return on Monday, April 20, 2009, to discuss possibly returning to work if things could be worked out and a truce agreed to between Cillo and the claimant.

16. The claimant filed for unemployment compensation on April 17, 2009, and the employer received the claimant's supposed allegation on the morning of April 20, 2009.   The allegation read, “claimant quit due to domestic violence.”

17. The wording upset the employer.   The employer told the claimant that the meeting would not be held due to the nature of the allegation.   The employer considered the claimant a resignation effective April 16, 2009.

In addition, the Board of review added the following sentence to the referee's finding of fact no.   14:  “The claimant removed all of her belongings from the workplace.”

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 herself.   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 her job voluntarily and further found that the claimant left the job without good cause attributable to the employer.   The Board concluded that the claimant's dispute with her coworker was a personality dispute which did not render her employment unsuitable.   It was further concluded by the Board that the claimant severed the employment relationship upon resigning and removing her belongings from the place of business.   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 conclusions and ruling of the Board of Review, this court must find that the decision of the Board of Review is logical and rational.

Finally, the appellant asserts that the referee demonstrated a bias against her.   There is a presumption that administrative board members acting in their adjudicative capacity are not biased.  Moraski v. Conn. Board of Examiners of Embalmers & Funeral Directors, 291 Conn. 242, 262 (2009).   To overcome this presumption the appellant must make an adequate record and demonstrate actual bias.  Clisham v. Board of Police Commissioners, 223 Conn. 354, 361-62 (1992);  Moraski v. Conn. Board of Examiners of Embalmers & Funeral Directors, supra, at page 263-66.   None of the claims of the appellant would establish such a record.

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.