Linda A. Cardella v. Administrator, Unemployment Compensation Act (2012)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT

FACTS

The administrator of the Unemployment Compensation Act (administrator) moves to dismiss this appeal by the plaintiff, Linda Cardella (claimant), from a decision of the employment security board of review (board) denying her claim for unemployment compensation benefits.

According to the record, the claimant was employed by Webster Bank (Webster) for nearly ten years prior to her termination.   At the time of her discharge, the claimant held the position of assistant manager.   On August 11, 2010, a noncustomer came into the bank seeking to cash a check for $8,333.   He was accompanied by a customer, who owned the Webster account upon which the check was drawn.   Webster had a policy that required a bank official to receive authorization from the RSDL department prior to cashing a check in excess of $5,000 for a noncustomer.   After speaking with these two individuals for about fifteen minutes, the claimant authorized a teller to cash the check without first contacting RSDL to have the noncustomer's name screened against the Office of Foreign Assets Control (OFAC) list, in violation of Webster's policy.   As a result of this violation, Webster discharged the claimant on September 9, 2010.

Following her notice of termination, the claimant filed a claim for unemployment compensation benefits pursuant to General Statutes § 31–241, which was denied by the administrator on September 29, 2010.   Pursuant to General Statutes § 31–242, the claimant appealed to the employment security appeals division, where an appeals referee conducted a de novo hearing and affirmed the administrator's determination on November 30, 2010, holding the claimant ineligible for benefits based on a finding that she was discharged for wilful misconduct in the course of her employment.   Pursuant to General Statutes § 31–249, the claimant appealed the referee's decision to the board, which adopted the referee's findings of fact numbers one through eight, substituted finding of fact number nine, and affirmed his decision on February 18, 2011.

The claimant then filed an appeal to this court under General Statutes § 31–249b.¹  On June 29, 2011, the administrator filed a motion for a judgment of dismissal of the claimant's appeal, arguing that the board's decision is reasonably supported by the evidence in the record, has a logical rational basis and is not arbitrary, capricious or contrary to law.   The claimant filed an opposition to the motion for judgment on July 8, 2011, and a memorandum of law in support of her appeal on September 21, 2011.   On November 4, 2011, the court heard arguments from the claimant and the administrator.   After considering the arguments and the briefs, and after reviewing the transcript before the appeals referee and the decisions of the appeals referee and the board, the court will deny the motion for judgment, reverse the decision of the board and sustain the claimant's claim that she is entitled to unemployment benefits effective September 5, 2010.

DISCUSSION

Under § 31–249b, the Superior Court does not undertake de novo review of unemployment compensation appeals from the board, but “acts as an appellate court to review the record certified and filed by the board ․” Finkenstein v. Administrator, Unemployment Compensation Act, 192 Conn. 104, 112, 470 A.2d 1196 (1984).  “[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable ․ [T]he trial court may [not] retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact ․ [The court's] ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.”  (Internal quotation marks omitted.)  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417, 828 A.2d 609 (2003).

“To the extent that an administrative appeal, pursuant to General Statutes § 31–249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the board of review.   The court must not retry facts nor hear evidence ․ If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts.   Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.”   (Internal quotation marks omitted.)  Mattatuck Museum–Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 276, 679 A.2d 347 (1996).

The issue in this appeal is whether the claimant's failure to secure the proper authorization before cashing a check constituted wilful misconduct in the course of her employment, thereby disqualifying her from unemployment compensation benefits.   The claimant argues that the findings of fact are not supported by the record, and also that the board's conclusion is not supported by the evidence, because her failure to obtain the requisite authorization was not intentional and merely negligent.   Specifically, the claimant alleges that she committed a good faith error on the spur of the moment when she simply forgot to make the necessary phone call because she was rushing to satisfy a customer who had waited a long time for service.   In response, the administrator argues that the claimant's appeal should be dismissed because, inter alia, the board's determination that the claimant engaged in wilful misconduct is reasonably supported by the evidence in the record, has a logical rational basis and is not contrary to the law or an abuse of discretion.

To the extent that the claimant challenges the findings of fact made by the board, the court notes that she did not file a motion to correct the findings of the board pursuant to Practice Book § 22–4.  Practice Book § 22–4 provides 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 ․” The “failure to file a timely motion [to correct] the board's findings ․ prevents further review of those facts found by the board.”  (Internal quotation marks omitted.)  Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. 170, 176, 968 A.2d 971 (2009).

“While the limits on a court's function in reviewing decisions of the board are well recognized, the failure of a claimant to file a motion to correct has not been considered fatal to the court's ability to review a decision to determine whether the board acted unreasonably or arbitrarily.”   Crenshaw v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Britain, Docket No. CV 99 0498448 (April 13, 2000, Shortall, J.) (27 Conn. L. Rptr. 80, 81).  Practice Book 22–9(a) explicitly empowers a reviewing court to determine “whether there was any evidence to support in law the conclusions reached” by the board.²  If the board's findings are without support in the record certified to the court, the court is empowered to find that the administrative action based on those findings was arbitrary and unreasonable.   See, e.g., Quality Coils, Inc. v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Britain, Docket No. CV 99 0495519 (March 7, 2000, Shortall, J.).   Therefore, this court's review is limited to determine, based on the evidence in the certified record, “whether there is a logical and rational basis for the decision of the [board] or whether, in the light of the evidence, [the board] has acted illegally or in abuse of [its] discretion.”  (Internal quotation marks omitted.)  Calnan v. Administrator, Unemployment Compensation Act, 43 Conn.App. 779, 785, 686 A.2d 134 (1996).

Under General Statutes § 31–236(a)(2)(B), an individual will be disqualified from receiving unemployment compensation benefits “if, in the opinion of the administrator, the individual has been discharged ․ for ․ wilful misconduct in the course of the individual's employment ․ “ ‘[W]ilful misconduct’ means 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 ․” General Statutes § 31–236(a)(16).  “Whether the circumstances of an employee's termination constitute wilful misconduct on the employee's part is a mixed question of law and fact.”  United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 386, 551 A.2d 724 (1988).   The administrator bears the burden of proving that the claimant was discharged for wilful misconduct.   See Beckert v. Administrator, Unemployment Compensation Act, 20 Conn.Sup. 9, 10, 119 A.2d 122 (1955).

The regulations of the department of labor further define the parameters of the statutory disqualification.³  To establish that an individual was discharged for deliberate misconduct in wilful disregard of the employer's interest, the board must find that the individual:  “committed an act or made an omission which was contrary to the employer's interest, including any act or omission which 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”;  “committed the act or made the omission intentionally or with reckless indifference for the probable consequences of such act or omission;  “knew or should have known that such act or omission was contrary to the employer's expectation or interest ․ and ․ at the time the individual committed the act or made the omission, he understood that the act or omission was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by mitigating circumstances of a compelling nature.”   (Emphasis added.)  Regs., Conn. State Agencies § 31–236–26a.   To establish that an individual was discharged for a single knowing violation of a rule or policy of the employer, the board must find that:  “the individual knew of such rule or policy, or should have known of the rule or policy because it was effectively communicated to the individual”;  “the individual's conduct violated the particular rule or policy”;  “the individual was aware he was engaged in such conduct”;  the “rule or policy instituted by [the] employer [wa]s reasonable”;  the “rule or policy of the employer was uniformly enforced”;  the “rule or policy of [the] employer was reasonably applied”;  and the violation of the rule or policy was not the “result of the individual's incompetence.”  (Emphasis added.)  Regs., Conn. State Agencies § 31–236–26b.

Our Supreme Court has also interpreted the statute, stating:  “By wilful misconduct is meant either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to himself by him who is guilty of it ․ Mere violation of a rule does not always constitute wilful misconduct.   To have that effect the disobedience must have been deliberate, not merely a thoughtless act on the spur of the moment ․ The breach of a rule by one who knows at the time that he is breaking the rule is a wilful breach;  but if by direct proof, or out of the circumstances, it appears to have been the result of thoughtlessness or inadvertence, the breach cannot be held to have been wilful.”  (Citation omitted;  internal quotation marks omitted.)  Bigelow Co. v. Waselik, 133 Conn. 304, 308, 50 A.2d 769 (1946).   Nevertheless, “it is well established that disregard of the standards of behavior that an employer has the right to expect of his employees, by carelessness or negligence of sufficient degree or frequency to show disregard for the employer's interests or equal culpability, constitutes wilful misconduct.”  United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, supra, 209 Conn. 386–87.

In the present case, the board adopted the appeals referee's conclusion that the claimant's failure to call RSDL constituted wilful misconduct in the course of her employment.   In doing so, the board adopted the referee's findings of fact numbers one through eight, but replaced his ninth finding that the claimant “overlooked” the authorization with the following finding:  “The claimant decided not to call RSDL but instead to ignore the employer's policy in order to expedite service to the two individuals and the others who were waiting.”

After a thorough review of the certified record, the court finds that there is no evidence to support the board's conclusion that the claimant possessed the requisite intent or awareness to engage in wilful misconduct disqualifying her from the receipt of unemployment compensation benefits.   At the hearing before the appeals referee, the claimant testified:  “I just let my guard down ․ I made a mistake.   It was nothing that was done wilfully ․ [I]t was an oversight.   It was not a wilful act.   I did not do that intentionally.”   The claimant further testified:  “[T]he job just was overwhelming for me ․ [T]he job just became more involved than what I was able to handle.   There were a lot of policies, a lot of procedure[s] changing, a lot more responsibilities, and I struggled with it ․ I did the best that I could ․ I would have never done anything to jeopardize the bank.”   Additionally, the employer's branch manager, Maria DeSimone, testified that the claimant told her that “she just forgot” to make the phone call to RSDL. Although the claimant does not dispute that she knew that the policy existed, there is no evidence that she was aware that she had overlooked the clearance when she authorized the check to be cashed, or that her failure to secure the authorization demonstrated a sufficient degree of negligence or carelessness to show disregard for her employer's interests.   See Pascal v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New London, Docket No. CV 05 4000859 (April 11, 2005, Hurley, J.T.R.) (sustaining claimant's appeal of board's decision because “[a]lthough the [employee] does not dispute that he knew that the policy existed, there was no evidence that he was aware that he failed to check [customer's] receipt or that his failure to do so demonstrated a sufficient degree of negligence or carelessness to show disregard for the employer's interests”);  Crenshaw v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Britain, Docket No. CV 99 0498448 (March 9, 2000, Shortall, J.) (sustaining claimant's appeal of board's decision because “there is no evidence supporting the board's finding [that claimant committed an act of disqualifying misconduct], and the conclusion it drew therefrom was arbitrary and unreasonable”).

The decision of the board was not supported by the evidence contained in the certified record, and therefore constituted an abuse of the board's discretion.   For the foregoing reasons, the administrator's motion for judgment is denied, the board's decision is reversed and judgment hereby enters awarding the claimant unemployment compensation benefits effective September 5, 2010.

PELLEGRINO, J.T.R.

FOOTNOTES

FN1. General Statutes § 31–249b provides in relevant part:  “At any time before the board's decision has become final, any party may appeal such decision ․ to the superior court ․ for the judicial district wherein the appellant resides.”.  FN1. General Statutes § 31–249b provides in relevant part:  “At any time before the board's decision has become final, any party may appeal such decision ․ to the superior court ․ for the judicial district wherein the appellant resides.”

FN2. “It should be noted that this function of the court is in addition to and an alternative to its function of determining whether a finding of the board should be corrected.”  (Emphasis in original.)  Crenshaw v. Administrator, Unemployment Compensation Act, supra, 27 Conn. L. Rptr. 81 n.1..  FN2. “It should be noted that this function of the court is in addition to and an alternative to its function of determining whether a finding of the board should be corrected.”  (Emphasis in original.)  Crenshaw v. Administrator, Unemployment Compensation Act, supra, 27 Conn. L. Rptr. 81 n.1.

FN3. Valid agency regulations have the force of statutes and constitute state law.   See Savage v. Aronson, 214 Conn. 256, 267, 571 A.2d 696 (1990)..  FN3. Valid agency regulations have the force of statutes and constitute state law.   See Savage v. Aronson, 214 Conn. 256, 267, 571 A.2d 696 (1990).

Pellegrino, Joseph H., J.T.R.