Michael Smith v. Administrator, Unemployment Compensation Act (2011)

MEMORANDUM OF DECISION

FACTS:

On November 26, 2007, the plaintiff, Michael Smith, was discharged from his employment at Vitamin World for wilful misconduct due to accounting errors in balancing the cash registers.   His application for unemployment compensation benefits was initially granted by the administrator, pursuant to General Statutes § 31–241.   Upon appeal by the employer, a referee conducted a hearing de novo, made findings of fact and reversed the decision of the administrator, pursuant to General Statutes § 31–242.

Pursuant to General Statutes § 31–249, the plaintiff appealed the decision of the referee to the Board of Review, which adopted the referee's findings of fact and affirmed her decision.   A subsequent motion to open the board's decision was denied, pursuant to General Statutes § 31–249a.

The plaintiff next filed an appeal to the superior court, pursuant to General Statutes § 31–249b.   The appeal was heard by the court, Berdon, J.T.R., which determined that the referee and board improperly considered a pattern of misconduct in determining that the plaintiff was discharged for an omission constituting deliberate misconduct, in contravention of General Statues § 31–236(a)(2)(B), as amended.¹  The court reversed the decision of the board and remanded the case to the board for further proceedings consistent with its decision.

The board withdrew its prior decision and issued a new decision, dated January 7, 2010, again adopting the referee's finds of fact, adding an additional sentence to finding of fact no. 15 that the plaintiff “did not tell his employer that he could not complete his closing duties in the time allotted.”   Record, p. 93.

The board's conclusions are twofold.   The first conclusion is based on the following facts:  The plaintiff had past counting errors in the cash register drawers, resulting in both overages and shortages (finding of fact nos. 10, 11, 13).   On the date of the final incident leading to his discharge, the plaintiff, who had been instructed to use a calculator in counting the drawers (finding of fact no. 6), failed to do on the date of the final incident leading to his discharge (finding of fact no. 8), failed to count the drawers twice as modeled by the employer (finding of fact no. 16), failed to count the drawers correctly (finding of fact nos. 3, 4) ² and failed to correctly calculate the deposit amount from the two drawers (finding of fact nos. 3, 4).   These failures cumulatively led the board to conclude that the plaintiff was indifferent toward his duties rather than simply negligent or incompetent.  Id.

In the alternative, the board found that the plaintiff's failure to use a calculator to add the totals of the drawers on the date of the final incident constitutes a deliberate disregard for the employer's reasonable directive.   Id.

The plaintiff appealed this second decision of the board to the superior court, pursuant to General Statutes § 31–249b.   The plaintiff did not file a motion to correct findings with the board of review pursuant to Conn. Practice Book § 22–9.   The plaintiff did file two briefs with the court, 102.00 on March 16, 2011 and 103.00 on April 6, 2011.   The defendant administrator filed a memorandum of law, 104.00, on April 15, 2011.   The court heard oral argument from the parties on November 10, 2011.³

STANDARD OF REVIEW:

Under Conn. Gen.Stat. § 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 (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. Dispute as to findings of fact

In both briefs and at oral argument, the plaintiff had a different version of the events on the date of the final incident.   He stated that, on that date, he had taken $10.00 from one drawer to make change.   He believes he mistakenly returned the $10.00 to the other drawer, resulting in one drawer being $10.00 short and the other being $10.00 over.   What the plaintiff has related, however, is not what occurred on the date of the final incident.   Rather, that event may have been one which occurred four days prior, on November 10, 2007 (finding of fact no. 10).   Record p. 35.   Even if the plaintiff's recollection was correct, it would not explain the discrepancy in the total of the two drawers for the deposit, as these would have balanced out.

Whether the plaintiff's recollection was correct is not for the consideration of the court in this appeal as the plaintiff's failure to move to correct the findings restricts the court's review of those findings.  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 ․ At oral argument, the plaintiff, a self represented party, remarked that he had not been informed of the necessity of filing a motion to correct findings with the board of review.   However, the board, together with its decision of January 7, 2010, provided the plaintiff with a “notice of appeal rights.”   The last paragraph of that notice states, “If a party who files an appeal to the Superior Court wishes to dispute the Board's findings of fact, it has to file a Motion to Correct Findings.   Procedures for filing such a motion are set forth in Chapter 22 of the Connecticut Practice Book.” Record, p. 96.

In Shah v. Administrator, Unemployment Compensation Act, et al, 114 Conn.App. 170, 968 A.2d 971 (2009), the pro se 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 held that, absent the prerequisite filing of a motion for correction with the Board of Review, the appellant 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 appellant'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.

II. Review of conclusions of the board of review

The board's conclusion is that the plaintiff's conduct was wilful misconduct, because despite being counseled on numerous occasions as to the procedure to be followed in counting the drawers and calculating the deposit (finding of fact no. 6), he failed to do so on the date of the final incident.   The board concluded that the plaintiff's past counting errors and repeated failure to use a calculator were indicia of indifference, not negligence or incompetence.   Record, p. 93.

In the alternative, the board concluded that the plaintiff's failure to use a calculator on the date of the final incident was a deliberate disregard of the employer's reasonable directive.  Id.

Both conclusions find support in the findings of fact, which the court must accept as proven.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra.   The court is limited to determining whether the decision of the board was unreasonable, arbitrary or illegal.  Guevara v. Administrator, supra.   The plaintiff has offered no argument that the decision was unreasonable, arbitrary or illegal, nor does the court find evidence that it was.   The court, therefore, has no basis upon which to overturn the decision of the board of review that disqualification pursuant to General Statutes § 31–236(a)(2)(B) was proper.

III. Impropriety of the board

At oral argument, the plaintiff asserted that the decision of the board of review was tainted because the appeals referee was also the chair of the board of review.   A review of the record confirms that there is no merit to this assertion.   The referee, Jill M. Sizensky, was not the chair of the board of review.   The chair was Lynn N. Knox. There is no evidence of any impropriety of the board of review.

CONCLUSION:

The appeal is dismissed.

Robert E. Young, Judge

FOOTNOTES

FN1. P.A. 95–323 § 3, removed the requirement that the wilful misconduct be “repeated.”   Presently, one instance of wilful misconduct may support a denial of benefits under this statute.   It is noted that this amendment to General Statues § 31–236(a)(2)(B) does not preclude the board's consideration of prior misconduct.   See Regs., Conn. State Agencies § 31–236–26..  FN1. P.A. 95–323 § 3, removed the requirement that the wilful misconduct be “repeated.”   Presently, one instance of wilful misconduct may support a denial of benefits under this statute.   It is noted that this amendment to General Statues § 31–236(a)(2)(B) does not preclude the board's consideration of prior misconduct.   See Regs., Conn. State Agencies § 31–236–26.

FN2. Although the board states the plaintiff miscounted both drawers, the referee's finding of fact no. 3 is that the “drawers were over $10 in total” and finding of fact no. 4 is that “the drawer was over $10.”   It is unclear whether one or both drawers were miscounted..  FN2. Although the board states the plaintiff miscounted both drawers, the referee's finding of fact no. 3 is that the “drawers were over $10 in total” and finding of fact no. 4 is that “the drawer was over $10.”   It is unclear whether one or both drawers were miscounted.

FN3. Subsequent to the hearing, the plaintiff placed numerous calls to various offices at the courthouse, including the clerk's office, caseflow office and the judges' secretary's office, leaving messages.   He also sent a letter dated November 13, 2011 by facsimile directed to the court.   The letter contained no certification or other indication that a copy was provided to opposing counsel.  Practice Book § 10–12.   As these constitute impermissible ex parte communications, they cannot be considered by the court..  FN3. Subsequent to the hearing, the plaintiff placed numerous calls to various offices at the courthouse, including the clerk's office, caseflow office and the judges' secretary's office, leaving messages.   He also sent a letter dated November 13, 2011 by facsimile directed to the court.   The letter contained no certification or other indication that a copy was provided to opposing counsel.  Practice Book § 10–12.   As these constitute impermissible ex parte communications, they cannot be considered by the court.

Young, Robert E., J.