Michael J. Warner v. Administrator, Unemployment Compensation (2011)

MEMORANDUM OF DECISION

The issue raised in this appeal is whether the employer, Acura by Executive, discharged the claimant, Michael J. Warner, for deliberate misconduct in the course of his employment.

The decision of the appeals referee, Sherwin M. Nelson, who heard the evidence and was able to assess the credibility of the claimant,¹ is dispositive of this matter.   The appeals referee held in his well reasoned decision as follows:  “Section 31–236(a)(2)(B) of the General Statutes provides that an individual is ineligible for benefits if he was discharged or suspended for willful misconduct in the course of his employment.   The individual will remain ineligible until he has earned at least ten times his benefit rate.  Section 31–236(a)(16) of the General Statutes further provides that, except in the case of a discharge resulting from an absence from work, ‘willful misconduct’ means:  1) deliberate misconduct in willful disregard of the employer's interest, or 2) a single knowing violation of an employer's reasonable and uniformly enforced rule or policy, when reasonably applied, unless the violation is due to an employee's incompetence.” ․

“The first definition of willful misconduct in General Statutes § 31–236(a)(1) provides that an individual will be ineligible for benefits if the individual was discharged or suspended for deliberate misconduct in willful disregard of the employer's interest.   To find that an individual was discharged or suspended under this provision, Regs. Conn. Agencies § 31–236–26a requires that all of the following elements must be established:  (a) Misconduct.   To find that any act or omission is misconduct, it must be found that the individual committed an act or made an omission which was contrary to the employer's interest, including any act or omission which is not consistent with the standards of behavior which an employer, in the operation of his business, should reasonably be able to expect from an employee;  (b) Deliberate.   To determine that misconduct is deliberate, it must be found that the individual committed the act or made the omission intentionally or with reckless indifference for the probable consequences of such act or omission;  and (c) Wilful disregard of the Employer's Interest To find that deliberate misconduct is in willful disregard of the employer's interest, it must be found that:  (1) the individual knew or should have known that such act or omission was contrary to the employer's expectation or interest;  and (2) at the time the individual committed the act or omission, he understood that the act or omission was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by mitigating circumstances of a compelling nature.   Such circumstances may include:  (A) events or conditions which left the individual with no reasonable alternative course of action;  or (B) an emergency situation in which a reasonable individual in the same circumstances would commit the same act or make the same omission, despite knowing it was contrary to the employer's expectation or interest.

“The Board of Review has held that striking another employee is generally considered willful misconduct unless the claimant's actions were justifiably and reasonably provoked by certain conduct of the other employee, or the claimant was not the aggressor and acted in self-defense, or the physical contact was de minimis in nature.   Under these circumstances, the element of willfulness is lacking and the claimant's conduct would not be disqualifying.   Jones v. G. Fox & Co., Board Case No. 719–BR–93 (3/30/94).

“The nature of the adversary's conduct is critical in determining whether a claimant's physical attack on another employee may be considered misconduct which is willful.   Physical provocation by the adversary has generally been deemed to produce either a self-protective response or an angry desire for retribution which is so spontaneous as to lack the deliberateness and intentionality required for a finding of willful misconduct.   See Paulk v. Beiersdorf, Inc., Board Case No. 2261–81–BR (12/23/81).   Mere touching, if forceful, may be sufficient provocation for a claimant's subsequent participation in a physical altercation.   Valez v. Greater Bridgeport Transit District, Board Case No. 533–87–BR (6/15/87).

“The referee found the claimant quite credible.   He indicated that he had no intention of fighting Roscoe although he had no intention of being made a fool either.   Roscoe's actions caused the “fight,” not the actions of the claimant.   The referee is aware that the claimant could have refused to have walked out with Roscoe, but, like many disagreements, he underestimated the verve of his opponent and needed to save face.   No one from management, including Gary Gargano, told the parties to stop.   The situation would have just been a verbal match outside had Roscoe, in an incredibly foolish move, put up his hands to fight the claimant and the claimant put him on the ground with one blow.   Current precedent does not require the referee to find the claimant guilty of willful misconduct simply for putting himself in a position where another would attempt to start a fight.   Roscoe caused his own destruction, not the claimant.   The employer is free to discharge the claimant as it wishes but his discharge is not disqualifying.

“Where an individual has been discharged from his job, the law should not be applied in such a manner as to deny benefits to the individual unless the evidence clearly establishes that the discharge was for willful misconduct within the meaning of the Unemployment Compensation Act. Harrison v. Kimberly Clark Corp., Board Case No. 2991–82–BR (2/10/83).   Therefore, although an employer may have sufficient justification for discharging an employee, that justification is not always grounds for denying unemployment benefits.   Wiggins v. Ideal Security Systems, Inc., Board Case No. 584–BR–88 (7/20/88).

“The employer, Acura by Executive, discharged the claimant, Michael J. Warner, for reasons other than willful misconduct in the course of his employment.   As a result, the claimant is not disqualified from receiving unemployment compensation benefits pursuant to General Statutes § 31–236(a)(2)(B).”

The appeals referee reversed the administrator, this court reverses the board of review and affirms the decision of the appeals referee.   The claimant is awarded full benefits effective the date he was discharged from his employment with Acura by Executive.

Robert I. Berdon

Judge Trial Referee

FOOTNOTES

FN1. “It is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence ․ [so should it be with the referee who hears the actual evidence].   Credibility must be assessed ․ not by reading the cold printed record [as the board does], but by observing firsthand the witness' conduct, demeanor and attitude ․” (Citation omitted;  internal quotation marks omitted.)  Burton v. Mottolese, 267 Conn. 1, 40, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004);  the board should defer to the referee who hears the evidence and was able to assess the credibility of the plaintiff..  FN1. “It is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence ․ [so should it be with the referee who hears the actual evidence].   Credibility must be assessed ․ not by reading the cold printed record [as the board does], but by observing firsthand the witness' conduct, demeanor and attitude ․” (Citation omitted;  internal quotation marks omitted.)  Burton v. Mottolese, 267 Conn. 1, 40, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 (2004);  the board should defer to the referee who hears the evidence and was able to assess the credibility of the plaintiff.

Berdon, Robert I., J.T.R.