Armen Manukyan v. Administrator, Unemployment Compensation Act (2011)

MEMORANDUM OF DECISION

PROCEDURAL HISTORY:

This is a statutory appeal concerning the denial of unemployment compensation.   After receiving a tip that the plaintiff was employed, an investigation ensued and the plaintiff's unemployment compensation benefits were halted by the administrator.   The administrator determined that the plaintiff was ineligible for unemployment compensation benefits because he was not available for work “within the meaning of the law as he was fully employed as a jeweler.”   Upon the plaintiff's appeal, a hearing was conducted de novo by a referee, who made eleven findings of fact and affirmed the administrator's decision.

Upon the plaintiff's additional appeal pursuant to General Statutes § 31–249, the board of review adopted the referee's findings of fact, added an additional twelfth finding of fact and affirmed his decision.   The plaintiff filed a motion to reopen which was denied.   The plaintiff files this appeal to the superior court pursuant to General Statutes § 31–249b.   These findings are more fully set forth below.

The plaintiff did not file with the board a motion for correction of the findings as required by Practice Book § 22–4.   The plaintiff has not filed any memorandum of law or position statement in support of his appeal.   The defendant administrator has filed a memorandum of law in opposition to the appeal.

STANDARD OF REVIEW:

Under General Statutes § 31–249b, the Superior Court does not undertake de novo review for unemployment compensation appeals from the Employment Security Board of Review.   Rather, based upon the record submitted by the parties, the court must determine whether the board could reasonably arrive at the factual findings and the conclusions of law that form the basis of this appeal.   See Finklestein v. Administrator, 192 Conn. 104, 112–13, 470 A.2d 1196 (1984).

“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.   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).

A plaintiff's “failure to file a timely motion [to correct] the board's findings in accordance with [Practice Book] § 22–4 prevents further review of those facts found by the board.”  (Internal quotation marks omitted.)   Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. 170, 176, 968 A.2d 971 (2009).   In the absence of a motion to correct the findings of the board, the 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(a).

ANALYSIS:

The plaintiff did not file a motion to correct the board's findings in the present case.   The board adopted the factual findings of the referee with regard to the reason for denying the plaintiff's application for benefits and added another.   In such a case, the superior court reviews the board's decision that the plaintiff was not available for full-time employment only to determine if the board's decision was unreasonable, arbitrary, or illegal.  Guevara v. Administrator, 172 Conn. 492, 495–96, 374 A.2d 1101 (1977).

It is the court's determination in this case that the board's decision was arbitrary in that its conclusions are not founded on its findings, are speculative and not in compliance with its own regulations.

General Statutes § 31–236e(a) provides that “the determination of a claimant's eligibility for unemployment compensation benefits shall be based solely on the provisions of [the Unemployment Compensation Act] and any regulations adopted pursuant thereto.”   Availability for employment is defined in § 31–235–6 of the Regulations:

(a) Except as provided in section 31–235–6a of the Regulations of Connecticut State Agencies, in order to find an individual eligible for benefits for any week, the Administrator must find the individual available for full-time work during that week.   An individual is available for work if the individual is genuinely exposed to the labor market.   An individual is genuinely exposed to the labor market if such individual is willing, able and ready to accept suitable work.

(b) The Administrator shall find that a labor market exists for an individual, if within a reasonable geographical area, there are jobs for which such individual possesses skills and abilities.   The fact that there are more persons in an area qualified for a certain type of job than there are job vacancies does not negate the existence of a labor market for the individual.   Restrictions on the type of work an individual is willing to accept shall only render the individual unavailable for work if the Administrator finds that the restriction reduces such individual's prospects for securing employment to such an extent that the individual is no longer genuinely exposed to the labor market.

(c) The Administrator may deny benefits on the basis of restricted availability if the Administrator has first advised and given the individual the opportunity to comply with the requirements of section 31–235 of the Connecticut General Statutes, except as provided in section 31–235–6a of the Regulations of Connecticut State Agencies.

(d) The Administrator shall afford an individual a reasonable period of time within which to seek employment at such individual's highest skill and wage level.   After a reasonable period of time, the Administrator may require the individual to broaden such individual's availability with respect to the type of work and wages the individual is willing to accept.

The court relies solely on the findings of fact which are contained in the Return of Record, pp. 74, 86.   The relevant findings are that the plaintiff and his sister lost their positions at a jewelry business, Findings of Fact 1, 2;  subsequently, the plaintiff's sister became the “managing member” of a jewelry business, Findings of Fact 4–6;  the record owner of the business is the plaintiff's sister, Finding of Fact 4;  the plaintiff spends some 25–30 hours per week at his sister's business, Finding of Fact 7;  and the plaintiff engaged in some self aggrandizement by publicizing himself as the owner of his sister's business.

There was no finding of fact which supports the conclusion of the board that the plaintiff actually was a legal owner of his sister's business.   To the contrary, the legal owner of the business was the plaintiff's sister.   Finding of Fact 4. There was no finding fact that the plaintiff was employed full time or that he received any compensation from his sister's business.   There was no finding of fact that the plaintiff did not make himself available for full-time employment elsewhere or that he was unable or unwilling to do so.   These findings of fact would be determinative of the issue of whether the plaintiff was available for work.

Rather, the board speculated that the plaintiff was the actual owner and that the plaintiff might have been compensated by his sister.   This speculation is unsupported by the findings.   The board further concluded that the plaintiff “is primarily devoting his time to his self-employment activities and that he is not genuinely attached to the labor market or available for full time work.”   Decision of the Board of Review, Return of Record, pp. 84–86.   These conclusions are also not supported by its findings of fact.   If the board had evidence of such conclusions, such evidence is not referenced in the findings of fact.

The board did not comply with Regs., Conn. State Agencies § 31–235–6 in its determination of availability.   The board did not comply with General Statutes § 31–236e(a).

ORDER:

The appeal is sustained and the decision of the board is reversed.   Pursuant to General Statutes § 31–249b, the case is remanded to the Board of Review with direction to hold a hearing to determine the amount of benefits to be awarded to the plaintiff.

Robert E. Young, J.

Young, Robert E., J.