Olga L. Deliz v. Administrator, Unemployment Compensation Act (2010)

MEMORANDUM OF DECISION

FACTS

This unemployment compensation appeal to the Superior Court is brought by the employee, Olga L. Deliz, (Deliz), from a decision of the employment security appeals division board of review (the Board).

On December 8, 2009, the defendant administrator of the unemployment compensations act (the Administrator) found Deliz ineligible for unemployment benefits effective November 8, 2009, pursuant to General Statutes § 31-236(a)(2)(B).  Deliz had been discharged from her employment by her employer, Hospital for Special Care (the “employer”), for wilful misconduct in the course of her employment due to her falsifying the pre-employment questionnaire.¹

Upon Deliz's appeal to the next level, the employment security appeals referee (the Referee) affirmed the Administrator's decision on January 22, 2010, and dismissed the appeal.   The Referee found that on March 31, 2009, Deliz had completed and signed a pre-employment questionnaire for the Hospital for Special Care for the position as a certified nurse's aide.   The questionnaire contained questions about childhood diseases and previous and past health conditions.   One section in particular asked about any illnesses related to heart trouble.   Deliz responded “no,” however she had two previous heart surgeries.   Question number 24 of the application inquired about previous job-related injuries, to which Deliz again responded “no,” as well as answering “no” to the question related to previous back injuries.   Deliz had a previous back injury, however, which she attributed to work.

On or about November 6, 2009, Deliz informed the occupational health consultant with the Hospital for Special Care that she was experiencing chest pain and back pain, and that she had experienced similar pain from a work injury.   She also disclosed at that time that she had two heart surgeries.   On November 11, 2009, the employer discharged Deliz for falsifying the pre-employment questionnaire.

The Referee found that Deliz was disqualified from receiving unemployment benefits because she was discharged for wilful misconduct in the course of the employment.  “[T]he employer discharged the claimant for failing to disclose her previous heart surgery and a possible workers' compensation injury.   A prospective employer has the right to choose whom to employ based upon a history of the applicant's background, experience, character and previous employment, and a claimant's falsification of information relating to these factors harms the employer's interests.”   Decision of Appeals Referee, p. 3.

Deliz was sent notice of the decision, with the following advisement:  IF YOU WISH TO APPEAL THIS DECISION, YOU MUST DO SO IN WRITING BY FRBURARY 16, 2010.

Deliz appealed the referee's decision on February 17, 2010, one day beyond the twenty-one-day appeal period allowed by law.   See, General Statutes § 31-248.   She contends that she filed her appeal late because she had been “busy looking for work.”

On April 1, 2010, the Board dismissed the appeal as untimely since the appeal was not filed within the twenty-one (21) day appeal period, and the Board found that Deliz lacked good cause for her untimely appeal as required by General Statutes § 31-248(a).

On April 12, 2010, Deliz filed a timely petition for review of the Board's decision of April 1, 2010.²  She did not allege any circumstances which the Board could find to be good cause for filing a late appeal.  “Although we are sympathetic to the claimant's financial circumstances, [Deliz] did not file a timely appeal to the board, and thus we may not exercise jurisdiction over that appeal.   See General Statutes § 31-248.”   Decision on Petition for Review, May 27, 2010.  “To the extent the petition was intended as a motion to reopen, it is denied.   Because the claimant has indicated she also wishes to appeal the board's decision to the Superior Court, we will certify the record of this case to the Superior Court without the necessity of further appeal by [Deliz.]”  Id.³

STANDARD OF REVIEW

Under General Statutes § 31-249b, the court does not undertake de novo review for unemployment compensation appeals from the Employment Security Board of Review and is bound by those facts found and reasonable conclusions reached from them.   The court may go no further than to determine whether the decision appealed is unreasonable, arbitrary or illegal.  Burnham v. Administrator, 184 Conn. 317, 321-22, 439 A.2d 1008 (1981).

The issue before the court is whether Deliz's appeal should be dismissed because it was untimely filed.  “[A]ppeals within the unemployment compensation system must be taken in a timely fashion and, if they are not, they come ‘too late’ for review.”  Gumbs v. Administrator, Unemployment Compensation Act, 9 Conn.App. 131, 133, 517 A.2d 247 (1986).   General Statues §§ 31-241 through 31-249b provide the statutory authority by which decision concerning unemployment compensation may be appealed.  General Statutes § 31-241 provides that the Administrator's decision is final unless the plaintiff has good cause for failing to file an appeal with a referee within twenty-one (21) days after the mailing of the notice of decision.  General Statutes § 31-248(a) provides that a referee's decision becomes final on the twenty-second day after its mailing to the parties unless the plaintiff has good cause for failing to file before that time a motion to reopen with the referee or an appeal to the Board of Review.   Good cause for an untimely appeal is established if a reasonable prudent individual under the same or similar circumstances would have been prevented from filing a timely appeal.   10 Reg. Conn. Agencies, D.O.L., § 31-237g-34(c)(1997).  General Statutes § 31-249a provides that the Board's decision becomes final on the thirty-first day after its mailing to the parties unless the plaintiff has good cause for failing to file before that time a motion to reopen with the Board or an appeal to the Superior Court.

Deliz claimed that she did not timely file her appeal because she was looking for other employment.   A claimant's preoccupation with finding a job does not excuse the late filing of an appeals See Lemire v. Erro Development Co., Board Case No. 1361-BR-91 (9/19/91).

The Board also found that Deliz failed to demonstrate good cause for the untimely filing of her appeal.

“Appeals to courts from administrative agencies exist only under statutory authority.   The failure to file an appeal from an administrative agency within the time set by statute renders the appeal invalid and deprives the court of jurisdiction to hear it.”  (Internal quotation marks omitted.)  Hefti v. Commission on Human Rights & Opportunitie s, 61 Conn.App. 270, 273, 763 A.2d 688, cert. denied, 255 Conn. 948, 769 A.2d 62 (2001).  “[W]henever a court discovers that it has no jurisdiction, it is bound to dismiss the case ․” (Internal quotation marks omitted.)  Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 557, 630 A.2d 1304 (1993).   The court, therefore, must dismiss Deliz's late appeal for lack of jurisdiction.

CONCLUSION

The appeal is dismissed.

Swienton, J.

FOOTNOTES

FN1. “Benefits are denied.   The claimant committed deliberate wilful misconduct when she falsified her job application.   The employer does have the right to expect the application to be filled out correctly so that they can choose the best candidate.   The claimant has failed to offer any reason for falsifying her job application.”   Decision and Reasoning of Administrator, December 8, 2009..  FN1. “Benefits are denied.   The claimant committed deliberate wilful misconduct when she falsified her job application.   The employer does have the right to expect the application to be filled out correctly so that they can choose the best candidate.   The claimant has failed to offer any reason for falsifying her job application.”   Decision and Reasoning of Administrator, December 8, 2009.

FN2. In fact, Deliz filed a “Motion to Reopen/Appeal to Superior Court.”.  FN2. In fact, Deliz filed a “Motion to Reopen/Appeal to Superior Court.”

FN3. As is the procedure set by the presiding judge in this judicial district, after the record was filed by the Board of Review, the court ordered a briefing schedule.   The Appellant's (Petitioner's) brief due by 8/24/2010, and the Respondent's brief due by 9/21/2010.   Neither party filed a brief.   The matter was submitted to the court on the papers..  FN3. As is the procedure set by the presiding judge in this judicial district, after the record was filed by the Board of Review, the court ordered a briefing schedule.   The Appellant's (Petitioner's) brief due by 8/24/2010, and the Respondent's brief due by 9/21/2010.   Neither party filed a brief.   The matter was submitted to the court on the papers.

Swienton, Cynthia K., J.