Oni R. Phaham v. Administrator, Unemployment Compensation Act et al. (2011)

MEMORANDUM OF DECISION

This is an appeal by the plaintiff, Oni Phaham, from the decision of the Employment Security Board of Review (board) which found the plaintiff ineligible for unemployment compensation benefits because she was terminated for willful misconduct.

On September 12, 2008, the administrator of the Connecticut Unemployment Compensation Act ruled that the claimant, Oni Phaham was eligible for unemployment compensation benefits effective August 10, 2008.   The employer, Oakleaf Waste Management filed an appeal on September 18, 2008, from the administrator's initial determination.   On December 23, 2008, following a de novo hearing, the appeals referee dismissed the employer's appeal and affirmed the administrator's decision.   On January 13, 2009, the employer appealed the appeals referee's decision to the board of review.   On May 7, 2010, the board of review reversed the appeals referee's decision.

As the basis for its decision, the board of review found the following facts in relevant part:  the claimant worked as a full-time open payables specialist for Oakleaf Waste Management from August 27, 2007, until August 14, 2008.   On July 14, 2008, the employer issued the claimant a final written warning due to a poor attendance issue.   On August 13, 2008, the claimant got into an argument with her supervisor where it was noted that the claimant spoke in a loud or raised voice.   After she concluded her meeting with her supervisor, co-workers heard the claimant exclaim, “Fuck David J. and his money!”   The “David J.” to whom the claimant referred to is the director of operations of Oakleaf Waste Management.   The claimant then prolonged the argument by returning to her supervisor's office to accuse the employer's management of lying to her.   The employer has a zero tolerance policy regarding the use of profanity in the workplace.   The employer had previously counseled the claimant about engaging in unprofessional conduct, expressing uncontrolled anger and using profanity in the workplace.   On August 14, 2008, the employer discharged the claimant based on the reports regarding the claimant's use of profanity and display of anger in the workplace.

The claimant then filed a timely appeal to this court on July 28, 2010, pursuant to General Statutes § 31–249b.¹  The administrator moved for judgment on November 4, 2010, arguing that the board's decision is reasonably supported by the evidence, that there is a logical basis for the decision and that the court is bound by the board's findings of fact.   In addition to the motion, the administrator filed a memorandum of law in support of the motion also dated November 4, 2010.   On May 9, 2011, argument on the motion for judgment was heard by this court.

The limited scope of review of administrative agency decisions permitted by the Superior Court is well settled.  “[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable ․ [T]he trial court may [not] retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact ․” (Internal quotation marks omitted.)  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417, 828 A.2d 609 (2003).   Furthermore, “[a]n agency's factual and discretionary determinations are to be accorded considerable weight by the courts.”  (Internal quotation marks omitted.)  Id., 417–18.

Due to the limited scope of review, this court will consider only “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.”  (Internal quotation marks omitted.)  Mattatuck Museum–Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 276, 679 A.2d 347 (1996).

In support of her appeal, the claimant argues that she had never been counseled about being angry or using profanity.   The claimant points out that there was no documentation of the same and that the only write-up for unprofessional conduct she received was for mistakenly sending out a company-wide email instead of a department-specific email.   Additionally, the claimant takes issue with the characterization of the argument as “heated” and the facts surrounding the incident in general.   In response, the administrator argues that the board's findings are binding on this court and that the claimant should have brought a motion to correct to challenge any findings of fact.

Practice Book § 22–4 provides in relevant part, “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 in the superior court, file with the board a motion for the correction of the finding ․” The plaintiff in the present case did not file such a petition.  “Filing a motion to correct is a prerequisite to any challenge to the board's decision.   The plaintiff's failure to file a timely motion for correction pursuant to Practice Book § 22–4 prevents this court from reviewing the facts found by the board.”  Reeder v. Administrator, Unemployment Compensation Act, 88 Conn.App. 556, 558, 869 A.2d 1288 (2005);  see also General Statutes § 31–249b regarding corrections of findings made by the board.   Accordingly, the court is bound by the board's finding of facts and the reasonable conclusions reached by the board.   Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 4–5, 434 A.2d 293 (1980).

Because this court is bound by the board's finding of facts, this court finds that the board's decision on the merits follows reasonably from those facts and correctly applies the law to those facts.   Accordingly, the decision is upheld.   For all of the foregoing reasons, the defendant's Motion for Judgment is granted and the plaintiff's appeal is dismissed.

William J. Lavery, Judge Trial Referee

FOOTNOTES

FN1. General Statutes § 31–249b provides in relevant part:  “At any time before the board's decision has become final, any party, including the administrator, may appeal such decision, including any claim that the decision violates statutory or constitutional provisions, to the Superior Court for the judicial district of Hartford or for the judicial district wherein the appellant resides ․”.  FN1. General Statutes § 31–249b provides in relevant part:  “At any time before the board's decision has become final, any party, including the administrator, may appeal such decision, including any claim that the decision violates statutory or constitutional provisions, to the Superior Court for the judicial district of Hartford or for the judicial district wherein the appellant resides ․”

Lavery, William J., J.T.R.