Donna Gagnon v. Administrator, Unemployment Compensation Act (2011)

MEMORANDUM OF DECISION

In this case, the plaintiff, Donna Gagnon, separated from her job as an office manager at CT Podiatry & Foot Surgery, LLC in Norwich, Connecticut.   Her application for unemployment compensation was initially denied by an administrator for wilful misconduct because she walked off her job in an act of insubordination.   The plaintiff appealed to an appeals referee.   The appeals referee reversed the administrator's decision and found that the plaintiff was eligible for benefits due to the fact there were mitigating circumstances, i.e. she was upset at the time.   Plaintiff's former employer appealed to the board of review, and the board reversed the referee's decision.   The Board agreed with the original decision, finding that there were no mitigating circumstances.   Now, on further appeal to this court, the plaintiff argues that she should be found eligible for unemployment compensation benefits.   The defendant has filed a Motion for Judgment seeking judgment in its favor.   For the following reasons, the court upholds the decision of the board of review.   Accordingly, the defendant's motion for judgment is granted, and the plaintiff's appeal is dismissed.

The record discloses the following facts:  The plaintiff was hired as an office manager at CT Podiatry & Foot Surgery, LLC, in Norwich, CT on June 29, 2009.   She was required to work at least thirty-two hours per week, with some flexibility in scheduling “by her proposal and mutual agreement.”   By December, her employer became dissatisfied with her due to her performance, and due to the fact that she was leaving work earlier and earlier, without sufficient notice or permission, to attend college courses.   On December 8, 2009, she was called into a meeting with her boss to discuss these problems, but she walked out.   At this point, the parties are in disagreement as to the facts and circumstances.   Plaintiff claims she was fired.   The employer claims she quit.   In either case, it is undisputed that the plaintiff was not permitted to return to work.   For the purposes of determining whether she is entitled to unemployment benefits, the dispositive issue is whether she committed a wilful misconduct.   If she committed a wilful misconduct, she is not eligible for benefits.   Wilful misconduct is defined as “deliberate misconduct in wilful disregard of the employer's interests, or a single, knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied ․” General Statutes § 31–236(a)(16).   The agency reasoned that walking off the job without permission is an act of insubordination that would be wilful misconduct unless there were mitigating circumstances.   After reviewing all of the facts and arguments, the board found as follows:

[T]he ․ owner indicated to the [plaintiff] that he wanted to meet with her to review her job performance on December 8. The owner intended to provide the claimant with a letter written by its business consultant, who was involved in the claimant's hiring.   In that letter, the consultant stated that the [plaintiff] had changed her hours without permission in leaving the work place at 4:00 p.m. and sometimes earlier.   He also advised the employer that the [plaintiff] was making grave errors and had a poor attitude and needed to correct the situation immediately.   The ․ owner was unable to give the letter to the [plaintiff] because she indicated she was leaving at 2:30 p.m. The [plaintiff] argued with the owner when he told her that they needed to meet and that he had a problem with her leaving work early on this day.   In response, the [plaintiff] told the owner that she was being treated “like a slave,” and that she did not want to work there anymore.   She left the workplace at approximately 3:00 p.m. even though her scheduled ending time was 5:00 p.m.

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We also do not find that the claimant was involved in a confrontation which was so upsetting that she spontaneously walked off the job ․ The claimant scheduled herself to leave work early without permission and did not deviate from this planned departure even after the ․ owner expressed his dissatisfaction with her leaving and advised her that he wanted to meet with her to discuss her job performance.   The claimant did not claim that she was emotionally upset or that the employer's owner was harsh or insulting.   She testified that she simply believed that the employer's owner had finished what he had to say to her.   Under the circumstances, we conclude that the claimant's leaving work early without permission constituted wilful misconduct.

Board decision, p. 3.

Based on these facts, the board found no mitigating circumstances for leaving the work site, and concluded that by leaving work early without permission, she committed wilful misconduct, making her ineligible for benefits.   The plaintiff thence appealed to this court.

In her court appeal, plaintiff essentially reiterates the same points she made before the agency:  claiming that her early departures from work were permissible;  that she did not quit;  and that the findings of fact by the agency were incorrect.   She additionally makes the new claim that the appeals referee refused to take her evidence at her hearing, but there is no evidence of that in the record, and she did not raise any such issue when she appealed to the Board of Review.   She also claims now that a tape recording of a December meeting with her boss was not given to her, but there is no claim that she ever requested a copy, nor is there any evidence in the record that the agency ever received, listened to or considered or relied upon any such recording in making its decision.   Nor is there any record of her making any objection regarding this point with the agency.

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).   Both the findings of subordinate facts and the reasonable conclusions of fact made by the agency are binding on this court.  Id. Should the issue involve a question of law, however, the court's review responsibility is broader.   The court must determine “whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed such facts.”  Id. While a 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.  Id.

In the present case, the court is bound by the findings of subordinate facts and reasonable conclusions of the board.   The claimant never sought to correct the board's factual findings and, thus, she is precluded from attacking the factual findings.   See, Practice Book § 22–4;  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422–23, 828 A.2d 609 (2003) (court cannot review evidence in record when claimant failed to file motion to correct the findings of the board).

The court finds that the board's conclusion that the plaintiff committed a wilful misconduct is supported by the findings of fact, and is reasonably drawn from those facts.   The court further observes that there is no support in the record for the plaintiff's new claims of evidentiary and procedural errors.   Even if it occurred, her failure to make and document timely objection constitutes waiver.   See Cutlip v. Conn. Motor Vehicles Commissioner, 168 Conn. 94, 98, 357 A.2d 918 (1975).   This court finds that the board ruled fairly and within its authority, and it will not reverse that determination.   The case turned on the credibility of the witnesses.   The agency evidently found the employer to be more credible.   This court cannot substitute its judgment for that of the agency on this point.   It is generally the province of the agency, as trier of fact, to determine the credibility of witnesses and weight of the evidence.  Howell v. Administrator, 174 Conn. 529, 532, 391 A.2d 165 (1978).   The agency acted fairly within the scope of its adjudicatory powers.   The board's decision correctly applies the law to the facts found and it is rational and logical, not unreasonable or arbitrary.   There is no support in the record for the evidentiary and procedural errors claimed.   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 accordingly.

THE COURT

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.