Cleaven Johnson v. Administrator, Unemployment Compensation Act et al. (2012)

MEMORANDUM OF DECISION

PROCEDURAL HISTORY BASED ON FINDINGS OF FACT

On April 3, 2009, the plaintiff, Cleaven Johnson, was laid off from his full-time employment with Nutmeg Big Brothers and Big Sisters.   He sought and initially was granted unemployment compensation benefits.

At the time, the plaintiff was participating in a full-time pastoral residency program at the Hospital of St. Raphael.   The hospital protested the award of benefits, stating that the plaintiff had been employed full-time since August 2008.   Record, p. 3. The plaintiff disputed this claim, stating he was enrolled in a residency program at Hospital of St. Raphael, receiving a stipend rather than wages and available to work a full-time second shift position.   Record, p. 11.

On August 11, 2009, the administrator terminated the plaintiff's benefits, finding the plaintiff was fully employed, not a student and, therefore, ineligible for benefits.   Record, pp. 22–23.   The plaintiff appealed the decision on September 3, 2012, twenty-two days after the administrator's decision and one day after the appeal period had expired.

On September 25, 2009, an appeals referee conducted a hearing, not on the merits of the plaintiff's employment status, but rather on the reasons for the plaintiff's late appeal.   The referee made four findings of fact as to the late appeal, finding (1) that the plaintiff received the decision within two days, (2) that the decision came with a notice that the plaintiff had twenty-one days to take an appeal and (3) that the plaintiff read most of the decision but did not read the “appeals rights portion.   The fourth fact is partially incomprehensible.   The initial portion states that the plaintiff filed a late appeal, unaware of the appeal deadline.¹  Record, p. 37.   The referee dismissed the appeal on the ground of lack of jurisdiction.  General Statutes § 31–241.   Record, p. 38.

The plaintiff timely appealed the referee's denial to the board of review pursuant to General Statutes § 31–249.   The plaintiff filed a letter with the board, newly asserting that he did not receive the decision of the referee until after the expiration of the appeal period.   Record, pp. 44–46.   The board conducted a de novo review of the record pursuant to General Statutes § 31–249.   The board adopted the referee's first three findings of fact, affirmed the decision of the referee and dismissed the appeal.   Record, p. 49.   The board specifically rejected the new assertions of the plaintiff that he did not receive the decision until after the expiration of the appeal period, stating that the plaintiff did not allege good cause for failing to assert this claim at the time of the hearing.   Record, p. 48.   The plaintiff did not file a motion to correct findings with the board.  Practice Book § 22–4.

The plaintiff timely appealed the decision of the board to the superior court, pursuant to General Statutes § 31–249b.   This court heard the appeal on January 30, 2012 after reviewing the record (103.31), the plaintiff's brief (105.00) and a memorandum of law in opposition to the appeal (106.00) filed by the defendant, Administrator, Unemployment Compensation Act [Administrator].

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. 51.

In Shah v. Administrator, Unemployment Compensation Act, 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

At the conclusion of the hearing as to good cause for untimely filing, the referee found that the plaintiff received the decision of the administrator and the notice of the appeal period within two days after the decision was mailed.

The board, de novo, reached the same conclusion.   The plaintiff asserted on appeal that “he did not want to disclose the family problems that led to his receiving the decision late.”   Record, p. 48.   The plaintiff claimed that these family problems caused him to receive the referee's decision after the appeal period had expired.   Record, pp. 44–46.   The board considered this assertion and rejected it for lack of good cause for failure to present this claim at the hearing.   Taken together, the plaintiff's claims as to good cause are conflicting.   First, he claimed he didn't read the notice as to the filing period.   After that claim was rejected, he claimed he didn't get the decision until after the appeal period had expired.   That the board found the credibility of the plaintiff wanting is reasonable.

To allow a claimant for benefits, after a hearing has been conducted, to assert new claims of good cause on appeal would negate the purpose of the whole hearing process.   As the decision of the board states, the flyer which accompanied the notice of the hearing before the referee fully informed the plaintiff that this would likely be his only hearing and the only opportunity to present evidence.   Record p. 48.   The time to present reasons in support of a claim of lack of notice was at that hearing, not on appeal.   Based upon the finding of facts, the board's determination that the plaintiff failed to present good cause for the late filing of the appeal is not unreasonable, arbitrary or illegal.   The board's decision was in accordance with General Statutes § 31–241.

CONCLUSION

The plaintiff's appeal is dismissed.

Robert E. Young, Judge

FOOTNOTES

FN1. The fourth finding of fact states, “The claimant filed a late appeal, unaware of the appeal deadline as specifically outline on the failed to appear for work or contact the employer of the decision.”.  FN1. The fourth finding of fact states, “The claimant filed a late appeal, unaware of the appeal deadline as specifically outline on the failed to appear for work or contact the employer of the decision.”

Young, Robert E., J.