Maria E. Claudio v. Administrator, Unemployment Compensation Act et al. (2011)

MEMORANDUM OF DECISION

This unemployment compensation appeal to the Superior Court is brought by the employee, Maria F. Claudio (Claudio), from an October 14, 2010, decision of the employment security appeals division board of review (the Board).

On February 25, 2010, the defendant administrator of the unemployment compensations act (the Administrator) found Claudio ineligible for unemployment benefits from her employer, the Y.W.C.A. of New Britain (the employer).   The employer had discharged Claudio from her employment for absenteeism which rose to the level of misconduct in the course of her employment.   Upon Claudio's appeal to the next level, the employment security appeals referee (the Referee) affirmed the Administrator's decision on May 20, 2010, and dismissed the appeal.   The Referee found that Claudio had been terminated from work for her absence from December 28, 2009, through January 8, 2010, when Claudio called the employer on one occasion and then failed to call again or provide medical documentation supporting her absence.   The Referee concluded that Claudio did not have good cause for failing to report her absences, and since these absences constituted wilful misconduct in the course of employment, Claudio was ineligible from receiving unemployment compensation benefits under General Statutes § 31–236(a)(2)(B).

Claudio appealed the Referee's decision to the Board, and on October 14, 2010, the Board affirmed the Referee's decision and dismissed the appeal.   Claudio subsequently filed the present appeal with the court.   She states that she “would like to fight for my unemployment, due to ‘wrongfully being terminated’ despite all that was said and mention (sic) above.”   The Administrator has filed a motion for judgment requesting the court to dismiss Claudio's appeal and affirm the Board's decision.

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.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417–18, 828 A.2d 609 (2003);  Burnham v. Administrator, 184 Conn. 317, 321–22, 439 A.2d 1008 (1981).

In the absence of a motion to correct the findings of the board, this court is not entitled to “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 ․ there was any evidence to support in law the conclusions reached.  [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses.”  Practice Book § 22–9.

“Practice Book § 22–4 provides the mechanism for the correction of the board's findings.   If the [claimant] desires that the findings be corrected, the [claimant] must, within two weeks of the filing of the record in the Superior Court, file with the board a motion for correction of the findings.”   (Internal quotation marks omitted.)  Belica v. Administrator, Unemployment Compensation Act, 126 Conn.App. 779, 786 (2011).  “[A] [claimant's] failure to file a timely motion for correction of the board's findings in accordance with § 22–4 prevents further review of those facts found by the board.”  Id.

Here the Board adopted the factual findings of the Referee with regard to the reasons for Claudio's discharge from employment.¹  Since Claudio did not file a motion to correct with the Board within two weeks of the filing of the record with the court, as required by § 22–4, and which prevents further review of those facts, the board's findings are binding on this court.   Therefore, the court reviews the decision only to determine if the board's decision was unreasonable, arbitrary, or illegal.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 417–18.

ANALYSIS

General Statutes § 3l–236(a)(2)(B), provides that an individual is ineligible for benefits if the individual has been discharged or suspended for wilful misconduct in the course of the individual's employment.   Wilful misconduct is defined in § 31–236(a)(16) as:

․ deliberate misconduct in wilful 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 and provided further, in the case of absence from work, ‘wilful misconduct’ means an employee must be absent without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances for three separate instances within a twelve-month period.   Except with respect to tardiness ․ each instance in which an employee is absent for one day or two consecutive days without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances constitutes a “separate instance.”

Pursuant to Reg. Conn. Agencies, D.O.L. § 31–236d(f)(2005), where an absence without notice continued for two or more consecutive days, a table provides that five consecutive days equals three instances of absence.

The referee and the board found the following facts.²  Claudio worked for the employer, who operates a child care facility which is required to staff a specific number of employees.   Some time in 2009, Claudio requested a three-week vacation, but was approved for only two weeks, and was told by the employer that the third week was not approved.   Claudio was scheduled to return to work on December 28, 2009, but on December 27, 2009, Claudio called the employer saying she did not know when she was going to return to work.   She was told to call the next day and advise the employer as to the date of return as well as to provide medical documentation.   Claudio did not call the employer between December 28, 2009, and January 8, 2010, and did not provide any medical documentation.   Despite being scheduled for work on December 28, 29, 30, and 31, 2009 and January 4 to 8, 2010, she did not appear for work, and did not call, despite having access to a working cell phone.   On January 8, 2010, the employer mailed Claudio a termination letter, which she received on January 9, 2010, and she was terminated effective January 11, 2010.

The conduct of the employee that resulted in her termination, as found by the appeals referee and as affirmed by the board of review, constitutes wilful misconduct in the course of her employment, and therefore pursuant to General Statutes § 31–236(a)(2)(B) is ineligible for benefits.   The court finds that the Board's decision was justified in the conclusion it reached.

CONCLUSION

The appeal is dismissed.

Swienton, J.

FOOTNOTES

FN1. Although Claudio requested from the Board a further hearing to produce “further verification of why [she] should he able to get her job back” as well as the opportunity to introduce copies of cell phone bills and letters, the Board denied her request for an evidentiary hearing because of her failure to show that the Board must receive additional evidence or testimony in order to adjudicate the appeal.  Section 31–237g–40 of the Regulations of Connecticut State Agencies.   The Board found that Claudio had not alleged any circumstances which they would find to be good cause for failing to produce the additional evidence of phone bills and letters earlier, or any other evidence.   Further, Claudio had not established that the evidence she was seeking to introduce was newly discoverable.  “New evidence which will provide a basis for reopening the record must meet essentially the same test as the evidence required for granting a new trial.”   Grant v. Connecticut Unemployment Compensation Administrator et al., Superior Court, judicial district of Hartford–New Britain at New Britain, Docket No. 410853 (February 22, 1984)..  FN1. Although Claudio requested from the Board a further hearing to produce “further verification of why [she] should he able to get her job back” as well as the opportunity to introduce copies of cell phone bills and letters, the Board denied her request for an evidentiary hearing because of her failure to show that the Board must receive additional evidence or testimony in order to adjudicate the appeal.  Section 31–237g–40 of the Regulations of Connecticut State Agencies.   The Board found that Claudio had not alleged any circumstances which they would find to be good cause for failing to produce the additional evidence of phone bills and letters earlier, or any other evidence.   Further, Claudio had not established that the evidence she was seeking to introduce was newly discoverable.  “New evidence which will provide a basis for reopening the record must meet essentially the same test as the evidence required for granting a new trial.”   Grant v. Connecticut Unemployment Compensation Administrator et al., Superior Court, judicial district of Hartford–New Britain at New Britain, Docket No. 410853 (February 22, 1984).

FN2. The board adopted the referee's findings of fact and decision, except for one modification to the date on which Claudio called the employer and left a message that she was not returning to work due to a death in her family and health issues..  FN2. The board adopted the referee's findings of fact and decision, except for one modification to the date on which Claudio called the employer and left a message that she was not returning to work due to a death in her family and health issues.

Swienton, Cynthia K., J.