Julia Alicia Nunez v. Administrator, Unemployment Compensation (2010)

MEMORANDUM OF DECISION

Julia Nunez appeals pursuant to C.G.S. 31-249b from the decision of the Employment Security Board of Review's (ESBR or board) denying her claim for unemployment compensation benefits.   The appeal was set down for hearing on October 25, 2010.   The defendant appeared through counsel.   The plaintiff/claimant did not appear or file a memorandum of law regarding his appeal.

Scope of Review

“[A]ppeals from the board to the Superior Court are specifically exempted from governance by General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act. All appeals from the board to the court are controlled by § 31-249b.”  Calnan v. Administrator Unemployment Compensation Act, 43 Conn.App. 779, 783, 686 A.2d 134 (1996).   Judicial review of any decision shall be allowed only after an aggrieved party has exhausted his or her remedies before the board.  General Statutes §§ 31-248(c) and 31-249a(c).  Appeals within the unemployment compensation system must be taken in a timely fashion or they are to be dismissed.  Gumbs v. Administrator, 9 Conn.App. 131, 133, 517 A.2d 257 (1986).

“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.”  (Internal quotation marks omitted.)  Mattatuck Museum-Mattatuck Historical Society v. Administrator, 238 Conn. 273, 276, 679 A.2d 347 (1996).   See also Practice Book § 22-9 (formerly § 519).  “The court must not retry facts nor hear evidence.”   (Internal quotation marks omitted.)  Mattatuck Museum-Mattatuck Historical Society v. Administrator, supra, 238 Conn. 276.   See also United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385, 551 A.2d 724 (1988);  Burnham v. Administrator, 184 Conn. 317, 321, 439 A.2d 1008 (1981).  “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.”  (Internal quotation marks omitted.)   Mattatuck Museum-Mattatuck Historical Society v. Administrator, supra, 238 Conn. 276.  “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.”  (Internal quotation marks omitted.)   Church Homes, Inc. v. Administrator, Unemployment Compensation Act, 250 Conn. 297, 303-04, 735 A.2d 805 (1999).

“As a general rule, [t]he application of statutory criteria to determine a claimant's eligibility for unemployment compensation under General Statutes §§ 31-235 and 31-236 involves mixed questions of fact and law in which the expertise of the administrative agency is highly relevant.”  (Internal quotation marks omitted.)  United Parcel Service.  Inc. v. Administrator, supra, 209 Conn. 386.   Questions involving matters of statutory construction are questions of law on which the agency's view is entitled to deference but is not dispositive.   See DaSilva v. Administrator, 175 Conn. 562, 564, 402 A.2d 755 (1978).   See also Bridgeport Metal Goods Mfg. Co. v. Administrator, 2 Conn.App. 1, 3, 475 A.2d 329 (1984).

Analysis

Significantly, Mrs. Nunez has not filed a motion to correct the record before the administrator nor has she filed a motion to add evidence to the record pursuant to the provisions of § 22-5 of the Practice Book. The statutory appeals mechanism that the plaintiff invokes specifically restricts the manner by which findings of the board can be challenged.   Findings of the board “shall be subject to correction only to the extent provided by section 22-9 of the Connecticut Practice Book.” General Statutes § 31-249b.  Section 22-9 of the Practice Book specifies that the trial court “cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses.”   See also Calnan v. Adminstrator, supra, 43 Conn.App. 783-84.   For the purposes of this appeal the court must accept the unchallenged administrative findings of facts.

In this case the Board determined that the claimant was not entitled to unemployment compensation benefits because she was discharged by her employer Mashantucket Pequot Gaming Enterprises for excessive absenteeism.   The record compiled in the unemployment file by the Appeals Referee reveals a short and somewhat complicated work history:  the plaintiff claiming she was injured on the job but also that she failed to report the injury for almost four months.   Her claim for workers' compensation benefits was denied and thereafter the plaintiff sought a medical leave of absence.   The plaintiff failed to complete the forms for the leave.   She was suspended for her failure to provide medical documentation.   Although the leave was eventually granted for a short period of time, the plaintiff continued to be absent from work without notice to the employer.   She was eventually discharged for wilful misconduct.

The Appeals Referee determined that the plaintiff was discharged for absenteeism that constituted wilful misconduct.   The Board of Review accepted these findings with only minor revisions.

Based upon these findings and others contained in the Record, there is adequate support in the record to support the conclusion that Mrs. Nunez was properly discharged for wilful misconduct.

Accordingly, this appeal is dismissed.

The Court,

Cosgrove, J.

Cosgrove, Emmet L., J.