Yolanda McClean v. Administrator, Unemployment Compensation Act et al. (2011)

MEMORANDUM OF DECISION

PROCEDURAL HISTORY BASED ON FINDINGS OF FACT:

The plaintiff was a 19–year employee of the United States Postal Service.   She failed to appear for work after September 13, 2009 because she was assisting an ill relative out of state.   The plaintiff requested an indefinite leave of absence but failed to follow through with the request or respond to her employer's request for documentation supporting the request and several follow up letters.

The plaintiff's application for unemployment compensation benefits were denied by the administrator, pursuant to General Statutes § 31–241, who found that the plaintiff voluntarily terminated her employment without good cause.   An individual is ineligible for unemployment compensation benefits if she left suitable work voluntarily and without good cause attributed to her employer.   General Statutes § 31–236(a)(2)(A)(i).

Upon the plaintiff's appeal pursuant to General Statutes § 31–242, a de novo hearing was conducted by an appeals referee, who made findings of fact and affirmed the ruling of the administrator.   The plaintiff next appealed to the board of review pursuant to General Statutes § 31–249.   With the exception of a minor change to the first finding of fact, the board of review adopted the referee's findings.   Pursuant to General Statutes § 31–249b, the plaintiff filed this appeal with the superior court.   She did not file a motion to correct findings with the board of review.

The plaintiff did file several documents with the court (104.00 and 106.00) which the court considers to constitute a brief and reply brief, respectively.   The defendant, Administrator, Unemployment Compensation Act [Administrator], filed a memorandum of law in opposition to the appeal (105.00).   A hearing was conducted by the court on November 10, 2011.

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).

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.”  Conn. Practice Book § 22–9.   In such a case, the superior court reviews that decision 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).

ANALYSIS:

I. Acceptance of findings of fact

The defendant, Administrator, Unemployment Compensation Act [Administrator], argues, inter alia, that the board of review's findings are binding upon the court because the plaintiff did not file a motion to correct the findings with the board of review.   The defendant is correct.

Practice Book § 22–4 states, 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 ․” (Emphasis added.)   In this matter, the plaintiff did not file a motion to correct findings with the board of review.

In Shah v. Administrator, Unemployment Compensation Act et al., 114 Conn.App. 170, 968 A.2d 971 (2009), the plaintiff failed to file a motion for correction with the board of review as required by P.B. § 22–4.   Rather, she filed a motion with the court to open the decision of the board.   The trial court found that, in so doing, the plaintiff complied with the requirement of P.B. § 22–4.   The appellate court disagreed.   Citing the appellate court case of Calnan v. Administrator, Unemployment Compensation Act, 43 Conn.App. 779, 785, 686 A.2d 134 (1996), the court in Shah stated that, absent the prerequisite filing of a motion for correction with the board of review, the plaintiff cannot challenge the board's findings on appeal.  Shah, 114 Conn.App. at 175.   The court further cited the supreme court case of JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422, 828 A.2d 609 (2003) for the holding that the plaintiff's failure to file a timely motion for correction of the board's findings in accordance with P.B. § 22–4 prevents further review of those facts found by the board.   Shah, 114 Conn.App.at 176.

The plaintiff has not complied with P.B. § 22–4 and therefore, this court is not entitled to entertain any challenge to the findings.   Even if those findings were subject to review, the board's basis for denial of benefits cannot be reviewed by this court because the appellant failed to comply with P.B. § 22–4 and there is no decision of the board on a motion for correction, pursuant to P.B. § 22–7, to consider.

II. Consideration of board's decision based on findings of fact

Even if a motion for correction was filed with the board of review, the plaintiff's assertions are the same assertions she has made throughout her appeal process.   The referee and board found that the plaintiff voluntarily left her employment for reasons unrelated to work.   While the plaintiff has stated in her brief and in her various filings during the unemployment compensation appeals process that she was harassed at work, this allegation is not within the findings of fact and the plaintiff failed to move to correct the findings to include it.

There is nothing in the findings indicating that the work was unsuitable or that the plaintiff had good cause to leave.   The plaintiff expressed no dissatisfaction with her work environment to her superiors or union.   She gave her employer no opportunity to remedy any issues of concern.   She simply stopped coming to work, asked for an indefinite leave of absence unrelated to her work environment and failed to follow through with the request or provide any further information or communication with her employer.   There is no good cause presented to the court which would allow the court to consider a result different from that determined by the board of review.  Regs., Conn. State Agencies § 31–236–22(2).

The plaintiff clearly disagrees with the findings of facts of the referee and board of review.   However, this court cannot retry the matter.   There is nothing in the findings of the board of review which would lead this court to believe the board's decision was unreasonable, arbitrary, or illegal, Guevara, supra, nor has the plaintiff alleged this.

CONCLUSION:

The plaintiff's appeal is dismissed.

Robert E. Young, Judge

Young, Robert E., J.