Contosha Sweat v. Administrator, Unemployment Compensation Act et al. (2012)

MEMORANDUM OF DECISION

PROCEDURAL HISTORY BASED ON FINDINGS OF FACT

On March 23, 2010, the plaintiff was terminated by her employer for failure to complete a job assignment and for dishonesty to her employer regarding her work on the assignment.   The plaintiff's application for unemployment compensation benefits were granted by the administrator, pursuant to General Statutes § 31–241.

Upon the employer's appeal pursuant to General Statutes § 31–242, a de novo hearing was scheduled but the plaintiff failed to attend.   The appeals referee reversed the ruling of the administrator.   The plaintiff filed a motion to open, which was granted and a new hearing was scheduled.   The original referee decision was withdrawn pursuant to General Statutes § 31–248.   Following the hearing, the referee affirmed the decision of the administrator, awarding benefits to the plaintiff.

The employer filed an appeal with the board of review.   Pursuant to General Statutes § 31–249, the board conducted a de novo review of the record, including the recording of the referee's hearing.   The board discarded the referee's findings of fact and made its own findings, which included that the plaintiff did not complete her assignment, was dishonest to her employer in reporting her progress in completing the assignment of updating client files and did not inform her employer about difficulties she claimed she was having with a computer in updating the files.   Record, pp. 105–06.

Based upon those findings of fact, the board concluded that the plaintiff had engaged in deliberate misconduct in wilful disregard of the employer's interests.   The board reversed the decision of the referee and sustained the employer's appeal, denying the plaintiff unemployment compensation benefits, pursuant to General Statutes § 31–249.

Pursuant to General Statutes § 31–249b, the plaintiff filed the present appeal of the board of review's decision with the superior court.   Of note, the plaintiff did not file a motion to correct findings with the board of review.   She filed a brief (102.00) with the court.   The defendant, Administrator, Unemployment Compensation Act [Administrator], filed a memorandum of law in opposition to the appeal (103.00).   A hearing was conducted by the court on January 9, 2012.

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, 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.   It is noted that the record reflects that the plaintiff received instruction from the board with its decision to file such a motion if the facts were disputed.   Record, p. 110.

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 roughly the same assertions she has made throughout her appeal process.   The board found that the plaintiff was given multiple warnings and chances to complete her assignment, but failed to do so.   Additionally, the board found that the plaintiff was dishonest in stating that she had done updates, when she had not.   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 board of review.   However, this court cannot retry the matter.¹  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

FOOTNOTES

FN1. At the court hearing, the plaintiff spoke at great length as to her version of the facts leading up to her discharge.   The plaintiff's testimony before the court was at odds with the brief she has filed, which also contains a recitation of her version of the facts.   For example, the plaintiff states in her brief that she was unable to enter data on the employer's program and so typed the updates in Microsoft Word. At the hearing, the plaintiff testified that she did not use word processing software.   Rather, she wrote the updates by hand.   Even if it were proper for the court to find facts, the court finds the credibility of the plaintiff wanting..  FN1. At the court hearing, the plaintiff spoke at great length as to her version of the facts leading up to her discharge.   The plaintiff's testimony before the court was at odds with the brief she has filed, which also contains a recitation of her version of the facts.   For example, the plaintiff states in her brief that she was unable to enter data on the employer's program and so typed the updates in Microsoft Word. At the hearing, the plaintiff testified that she did not use word processing software.   Rather, she wrote the updates by hand.   Even if it were proper for the court to find facts, the court finds the credibility of the plaintiff wanting.

Young, Robert E., J.