Thais A. Mink v. Administrator, Unemployment Compensation Act et al. (2012)

MEMORANDUM OF DECISION

This unemployment compensation appeal to the Superior Court is brought by the employee, Thais A. Mink (Mink) from the July 12, 2011, decision of the employment security appeals division board of review (the board).

On January 24, 2011, the defendant, administrator of the unemployment compensations act, (the administrator), found Mink eligible for unemployment benefits from her employer, XSE Group, Inc. (the employer).   The employer had discharged Mink from her employment for her excessive personal use of the employer's computer which it asserted rose to the level of misconduct in the course of her employment.   The administrator found that the employer had failed to establish that Mink was discharged for a final incident of a “knowing violation of company policy that is uniformly enforced and reasonably applied,” and found Mink eligible for benefits.

Upon the employer's appeal to the next level, the employment security appeals referee (the referee) reversed the administrator's decision on March 10, 2011, and sustained the employer's appeal.   The referee found that the employer had discharged Mink for a knowing violation of its rules in the course of her employment, and as a result, she was disqualified from receiving unemployment compensation benefits pursuant to General Statutes § 31–236(a)(2)(B).

Mink appealed the referee's decision to the board, and on July 12, 2011, the board affirmed the referee's decision and dismissed the appeal.   Mink subsequently filed the present appeal with the court.   Mink states that the decision was incorrect, in that she believes that the policy was not uniformly enforced, and also challenges the credibility of the employer.   She is also requesting the court to subpoena records and payroll information to substantiate her claims that the employer was not credible.   The administrator has filed a motion for judgment requesting the court to dismiss Mink's appeal and affirm the board's decision.

STANDARD OF REVIEW

Under General Statutes § 31–249b, the court does not undertake de novo review for unemployment compensation appeals from the Employment Security Board of Review and is bound by those facts found, and reasonable conclusions reached from them.   The court may go no further than to determine whether the decision appealed is unreasonable, arbitrary or illegal.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417–18, 828 A.2d 609 (2003);  Burnham v. Administrator, 184 Conn. 317, 321–22, 439 A.2d 1008 (1981).

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.”  Practice Book § 22–9.

“Practice Book § 22–4 provides the mechanism for the correction of the board's findings.   If the [claimant] desires that the findings be corrected, the [claimant] must, within two weeks of the filing of the record in the Superior Court, file with the board a motion for correction of the findings.”   (Internal quotation marks omitted.)  Belica v. Administrator, Unemployment Compensation Act, 126 Conn.App. 779, 786 (2011).  “[A] [claimant's] failure to file a timely motion for correction of the board's findings in accordance with [Practice Book] § 22–4 prevents further review of those facts found by the board.”  Id.

The board adopted the factual findings of the referee with regard to the reasons for Mink's discharge from employment, as well as expanding on two of the findings of fact.   Since Mink did not file a motion to correct with the board within two weeks of the filing of the record with the court, as required by Practice Book § 22–4, and which prevents further review of those facts, the board's findings are binding on this court.   Therefore, the court reviews the decision only to determine if the board's decision was unreasonable, arbitrary, or illegal.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 417–18.

ANALYSIS

General Statutes § 31–236(a)(2)(B), provides that an individual is ineligible for benefits if the individual has been discharged or suspended for wilful misconduct in the course of the individual's employment.   Wilful misconduct is defined in § 31–236(a)(16) as:

․ deliberate misconduct in wilful disregard of the employer's interest, or a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not a result of the employee's incompetence and provided further, in the case of absence from work, ‘wilful misconduct’ means an employee must be absent without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances for three separate instances within a twelve-month period.”  (Emphasis added.)

Pursuant to Reg. Conn. Agencies, D.O.L., § 31–236–26b (1997), the elements of a rule violation as wilful misconduct are as follows:  (1) the individual knew or should have known of the rule or policy because it was effectively communicated to him;  (2) his conduct violated the rule;  (3) he was aware he engaged in such conduct;  (4) the rule is reasonable in light of the employer's lawful business interest and there is a clear relationship between the rule, the conduct regulated, and the employer's lawful business interest;  (5) the employer uniformly enforced the rule in that similarly situated employees subject to the workplace rule are treated in a similar manner when they violate a rule or policy:  (6) the rule is reasonably applied in that the action taken by the employer is appropriate in light of the violation of the rule and the employer's lawful business interest, and there were no compelling circumstances which would have prevented the individual from adhering to the rule;  and (7) the rule violation was not the result of the individual's incompetence.

Pursuant to Reg. Conn. Agencies, D.O.L., § 31–236–26a(a)(1997), deliberate misconduct requires commission of an act or omission that is not consistent with the standards of behavior which an employer, in the operation of his business, should reasonably be able to expect from an employee.   Pursuant to 31–236a(c), deliberate misconduct in wilful disregard of the employer's interest is established where the individual knew or should have known that such an act was contrary to the employer's interest or expectation and, at the time the act took place, he understood it was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by circumstances of a compelling nature.   Such mitigating circumstances include events or conditions which left the individual no reasonable alternative course of action or an emergency situation where a reasonable individual in the same circumstances would commit the same act, despite knowing it was contrary to the employer's expectation or interest.   The board of review has held that making excessive personal phone calls at work constitutes deliberate misconduct in wilful disregard of the employer's interests, and have analogized the excessive use of the employer's computer for personal use to an employee making excessive phone calls at work.   The board of review has also ruled that a claimant's use of the employer's computer over a forty-minute period to send personal e-mails constituted loafing or unproductive use of work time that rose to the level of wilful misconduct.   See, e.g., Johnson v. Hamden Health Care Center, Board Case No. 234 BR–06 (3/21/06);  Gravelle v. Servicemaster Apple Valley Services, Board Case No. 1273–BR–04 (3/17/05);  Sharp v. Nutmeg Exhibit Company, Board Case No. 10530–BR–09 (8/19/09).

The board found the following facts.   Mink was employed at XSE Group, Inc., from July 25, 2005, until December 30, 2010.   On July 22, 2005, she acknowledged receipt of the employer's policies, and pursuant to those policies, “unauthorized use of XSE/IMAGE STAR equipment and supplies for non-related purposes is strictly prohibited.   Any employee who violates this rule will be subject to discipline, up to and including termination.   XSE/IMAGE STAR equipment and supplies includes, but is not limited to ․ Computers/Printers ․” The employer explained that the purpose of this policy was to ensure employee production during working hours.

In order to monitor the use of the computers by employees, the employer utilizes a computer program which enables it to run reports on a monthly which identifies those persons who “visit” unauthorized sites.   When persons are identified, the employer's disciplinary policy for those persons in violation of its rules is to give an employee a verbal warning and three written warnings prior to termination.   The employer has terminated employees who violate their computer use policy.

On June 10, 2009, the employer sent Mink an e-mail indicating that she had been identified as number eight (8) in the company in terms of her “visits” to unauthorized sites, and directed Mink to refrain from accessing those sites.   On August 3, 2009, Mink was sent another e-mail, this time identifying her as number six (6) in the company in terms of accessing unacceptable interest sites, with a total of three hundred and eighty-eight (388) “visits” in the month of July. On March 3, 2010, the employer issued a written warning to Mink indicating that she had been found in violation of the company policy prohibiting personal e-mails being sent via company computers.   A chain of thirty (30) e-mails were documented within a two-hour period on February 26, 2010.   The warning stated that any further incidents would result in disciplinary action up to and including termination.   The warning also provided that:  “[e]mployee will refrain from conducting personal business while on duty including cell phone, texting, e-mailing and any other method prohibited by company policy.   Employee is reminded that she is expected to work while on duty.”

At the end of December 2010, the employer ran a report which showed that Mink had engaged in daily extended conversations via e-mail with friends and family using the company computer.   The audit also showed that Mink had exchanged at least thirty (30) personal e-mails with her friends or family members during business hours on December 27, 2010.   After discussions between Mink's supervisors, a decision was made to discharge her for continual violations of company policies and procedures.   On January 3, 2011, when Mink called to say she would be late for work, she was informed that she was discharged from her employment.

Mink was aware of the policy of the employer which prohibited computer use for personal matters.   The policy was made to ensure maximum employee productivity during work houses.   Mink was given multiple warnings regarding her violation of this policy, and her ongoing violation of the policy would indicate that the employer's application of the rule was reasonable in this case, and her discharge justified.

The conduct of the employee that resulted in her termination, as found by the board of review, constitutes wilful misconduct in the course of her employment, for her ongoing violation of a known company policy.   Therefore, pursuant to General Statutes § 31–236(a)(2)(B), Mink is ineligible for benefits.   The court finds that the board's decision was justified in the conclusion it reached.

CONCLUSION

The appeal is dismissed.

Swienton, J.

Swienton, Cynthia K., J.