Devon Wiggins v. Administrator, Unemployment Compensation Act et al. (2010)

MEMORANDUM OF DECISION

In this case, Devon Wiggins, [hereinafter plaintiff] has appealed the decision of the Employment Security Appeals Division Board of Review [hereinafter Board] reversing the appeals referee's decision to reverse the Administrator's denial of unemployment benefits.   For the reasons stated herein, the court upholds the decision of the Board and the plaintiff's appeal is dismissed.

The record discloses the following facts.   The plaintiff was employed as a full-time pallet returns clerk for Bozzutos, Inc. (employer) from July 14, 2008 to August 25, 2009.   Prior to August 24, 2009, the plaintiff had been frustrated by the way that Anthony Rebaudo, Quality Control Manager for the employer, supervised and monitored the plaintiff's job performance.   The plaintiff was also frustrated by the way that Rebaudo enforced workplace rules.

On August 24, 2009, at approximately 2:00 p.m., Rebaudo suspended the plaintiff for three days for leaving the workplace early on August 18, 2009, without permission.   The plaintiff left the workplace on August 24, 2009, immediately after the suspension.   The plaintiff was very upset about the suspension, and at approximately 2:30 p.m., the plaintiff called his supervisor Dan Bridges, whom he got along with, to express his frustration with the suspension and Rebaudo.   Bridges did not answer the call and the plaintiff left a voice mail message.   The plaintiff left an extensive voice message in which he uttered numerous profanities to his supervisor about his manager.   On August 25, 2009, the employer discharged the plaintiff because of his voice mail message.   On September 19, 2009 the plaintiff filed for unemployment benefits.   On October 15, 2009, after a hearing on October 5, 2009, the administrator denied the plaintiff unemployment benefits.   The administrator found that the plaintiff's actions were clearly contrary to the employer's interest and not consistent with behavior that an employer should expect from an employee.   The administrator further found that the plaintiff should have known that his actions on 8/24/09 would lead to termination.   The administrator therefore concluded that the plaintiff was terminated for “deliberate misconduct in willful disregard of his employer's interest” and thus, denied the plaintiff's request for unemployment benefits.

On October 20, 2009, the plaintiff filed a timely appeal from the administrator's decision to the Employment Security Appeals Division.   On December 16, 2009, the appeals referee conducted a hearing de novo to which the plaintiff, Rebaudo, and Paul Scott, agent, appeared and testified.   By a decision issued on January 5, 2010, the appeals referee found that the voice mail message left by the plaintiff for which he was discharged was “[a] single, hot-headed incident of insubordination or a display of anger involving the use of profanity that [was] spontaneous or borne of frustration [which] does not generally constitute wilful misconduct.”   Record, p. 40.   The referee therefore concluded that the employer discharged the plaintiff for reasons other than willful misconduct in the course of his employment and, as a result, the plaintiff was not disqualified from receiving unemployment benefits pursuant to General Statutes § 31-236(a)(2)(B).  The appeals referee reversed the administrator's determination and sustained the plaintiff's appeal.   The employer filed a timely appeal to the Board on January 26, 2010.  General Statutes § 31-249.   Acting under authority contained in General Statutes § 31-249, the Board reviewed the record in the appeal, including the tape recording of the referee's hearing and determined that “[a]lthough ․ the manager had suspended the plaintiff that day [August 24, 2009], and the [plaintiff] was upset about that suspension, the plaintiff did not make his statements spontaneously in the midst of a heated conversation.   The claimant left work and called back a full half hour later.   Moreover, we cannot find the suspension for leaving the workplace without authorization to be unreasonable such that it constituted sufficient provocation [of] this outrageous response.”   Record, p. 51.   The Board concluded that under all of these circumstances, the employer discharged the plaintiff for willful misconduct in the course of employment.   The Board therefore determined that the plaintiff was disqualified from receiving unemployment compensation benefits and reversed the referee.

On April 5, 2010 the plaintiff appealed the decision of the Board to the Superior Court.   In his appeal to this court, the plaintiff admits that he left the voice mail message to his supervisor disparaging their manager using numerous profanities, however, he claims that it was an outburst which was a result of the suspension he received that day and that he regretted the incident and was sorry for his behavior.   The plaintiff further claims that his conduct did not meet the standard of wilful misconduct in the course of his employment.

The court's standard of review in an unemployment compensation appeal is limited.  “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.”  Latina v. Administrator, Unemployment Compensation Act, 54 Conn.App. 154, 159, 733 A.2d 885 (1999) quoting Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 283 Conn. 273, 276, 679 A.2d 347 (1996).  “The court must not retry the facts nor hear evidence ․ 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.   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.”  (Citations omitted.)   United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 385-86, 551 A.2d 724 (1988).

The plaintiff did not file a motion to correct the Board's factual findings, as Practice Book § 22-4 requires.¹  The absence of such a motion forecloses this court from considering any facts that are not in the certified record.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422-23, 828 A.2d 609 (2003) ( [“the plaintiff's] failure to file a timely motion for correction of the Board's findings in accordance with § 22-4 prevents further review of these facts found by the Board”).   Therefore, the court may only consider whether the record contains evidence to support the Board's conclusions.

“Whether the circumstances of an employee's termination constitutes willful misconduct on the employee's part is a mixed question of law and fact.   As a general rule, [t]he application of statutory criteria to determine a claimant's eligibility for unemployment compensation ․ involves mixed questions of fact and law in which the expertise of the administrative agency is highly relevant.”  (Internal quotation marks omitted.)  United Parcel Services, Inc. v. Administrator, Unemployment Compensation Act, supra, 209 Conn. 386.   “Moreover, the construction placed upon a statute or regulation by the agency responsible for its enforcement and administration is entitled to great deference.”   See Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S.Ct. 781, 93 L.Ed.2d 819 (1986).   Strawberry Hill Animal Hospital LLC v. Administrator, Unemployment Compensation Act, Superior Court judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4007548 (August 8, 2006, Lewis, J.T.R.).

This appeal is governed by General Statutes § 31-236(a)(2)(B), which provides in relevant part that “[a]n individual shall be ineligible for benefits ․ if, in the opinion of the administrator, the individual has been discharged ․ for ․ willful misconduct in the course of the individual's employment.”  Section 31-236(a)(16) defines willful misconduct as “deliberate misconduct in willful disregard of the employer's interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not a result of the employee's incompetence ․” (Emphasis added.)

Section 31-236-26 of the Regulations of Connecticut State Agencies provides in relevant part:  “To find that any act or omission is willful misconduct in the course of employment as defined in § 31-236-26c of the Regulations of Connecticut State Agencies, the Administrator shall find that:  (1) the individual committed deliberate misconduct in willful disregard of the employer's interest, as defined in § 31-236-26a of the Regulations of Connecticut State Agencies;  or (2) the individual committed a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied ․” ² (Emphasis added.)

The Board clearly found that the “voice mail message the claimant left for his supervisor about their manager to be so egregious as to rise to the level of wilful misconduct.”   Record, p. 50.   Specifically, the board found that the plaintiff's “voice mail message contained numerous profanities.”  Id. The board found that the plaintiff called his manager “ ‘a pussy’ and ‘a piece of fuckin’ shit,' “ and ended his message “by stating ‘Fuck Bozzuto's.’  “ Id. In addition, the board found that the plaintiff “undermined the manager's authority by including in the message to the supervisor, who also reported to the manager, that he would not accept the manager's authority over him.” ³  The board also found that the plaintiff's behavior was not a single, isolated angry outburst, which does not generally constitute wilful misconduct under Jones v. Safety Kleen Corp., Board Case No. 1075-BR089 (11/30/89), but rather so egregious that it rose to the level of willful misconduct.   The board further found that the plaintiff's statements were not spontaneous.   He left work after the suspension and called back a full half hour later.   Thus, based on the foregoing, the board found that under all of these circumstances the plaintiff was discharged for wilful misconduct in the course of his employment.

The Superior Court, on hearing appeals from the Board, is bound by factual findings of the Board.  “A reviewing court must accept the findings made by the Board as to witness credibility and must defer to the agency's conclusions to be drawn from the evidence.  Howell v. Administrator, Unemployment Compensation Act, 174 Conn. 529, [391 A.2d] (1978);  Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, [554 A.2d 292] (1989).”   Cooper v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New London at Norwich, Docket No. CV 98 115055 (February 24, 2000, Corradino, J.).

A review of the certified findings of fact demonstrates that there is sufficient evidence to support the Board's conclusion that the plaintiff engaged in deliberate misconduct in willful disregard of the employer's interest.   In addition, the board's ruling is reasonable and consistent with the applicable statute, regulations, and case law.

Given the factual findings and credibility the Board assigned to the witnesses, which this court is required by law to accept, there is no basis for this court to conclude that the Board acted unreasonably, arbitrarily, illegally or otherwise abused its discretion in reversing the appeals referee's decision and concluding that the plaintiff's voice mail message to his supervisor about their manager, rose to the level of willful misconduct in the course of his employment.   For the foregoing reasons, the plaintiff's appeal is dismissed.

Wilson, J.

FOOTNOTES

FN1. Practice Book § 22-4 provides:  “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 with 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 and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for ․”.  FN1. Practice Book § 22-4 provides:  “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 with 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 and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for ․”

FN2. “Valid [state] agency regulations have the force of statutes and constitute law.”  Acro Technology v. Administrator, Unemployment Act, 25 Conn.App. 130, 135, 593 A.2d 154 (1991)..  FN2. “Valid [state] agency regulations have the force of statutes and constitute law.”  Acro Technology v. Administrator, Unemployment Act, 25 Conn.App. 130, 135, 593 A.2d 154 (1991).

FN3. The Board noted the following statements of the plaintiff in support of its finding that the plaintiff undermined the manager's authority:  “I only deal with you, as my supervisor, I don't give a fuck what his rank is.   I don't want him to look at me, sniff at me, even blink a fuckin' eyelash at me.   He needs to remain fifty to one hundred feet away from me when I come in here ․ If he has something else to say to me, he says it though you.   I don't wanna fucking see him anymore.   Fuck him.   Fuck him.”   Record, p.p. 50-51..  FN3. The Board noted the following statements of the plaintiff in support of its finding that the plaintiff undermined the manager's authority:  “I only deal with you, as my supervisor, I don't give a fuck what his rank is.   I don't want him to look at me, sniff at me, even blink a fuckin' eyelash at me.   He needs to remain fifty to one hundred feet away from me when I come in here ․ If he has something else to say to me, he says it though you.   I don't wanna fucking see him anymore.   Fuck him.   Fuck him.”   Record, p.p. 50-51.

Wilson, Robin L., J.