Brent K. Orozco v. Administrator, Unemployment Compensation Act et al. (2012)

MEMORANDUM OF DECISION

I

PROCEDURAL HISTORY

This is an unemployment compensation appeal to the Superior Court by the employee, Brent K. Orozco.   Orozco is appealing the June 23, 2011 decision of the Employment Security Appeals Division Board of Review (“Board”) in which the Board affirmed the referee's determination that he was not eligible to receive benefits.

The following procedural background is relevant to the appeal.   On November 30, 2010 the administrator of the Unemployment Compensation Act found that Orozco was eligible for unemployment compensation benefits.   The administrator concluded in relevant part:  “The claimant was discharged on 11/9/10 for expressing his views to the owner about complaints that he spoke to him in an inappropriate manner two days earlier.”  (ROR, p. 7, Findings of Fact, para. 1.) “The fact that the employer's business manager left a voice mail altering this decision is at best disingenuous.   Since the claimant committed no conduct violations, there is no evidence he engaged in any act of wilful misconduct.”   (ROR, p. 7, Decision and Reasoning.)

The employer appealed the decision of the administrator on the ground that Orozco “voluntarily resigned.”  (ROR, p. 11.)   The appeal was heard by a referee, who stated that there were two issues to be addressed.   First, “[t]he initial issue is whether the claimant quit his job or was discharged.”  (ROR, p. 30.)   Second, “[t]he next issue raised by this appeal is whether the claimant, Brent Orozco, voluntarily left suitable work with good cause attributable to the employer.”  (ROR, p. 30.)

In the March 14, 2011 decision, the referee made findings of fact, conclusions of law and an order.  (ROR, pp. 28–34.)   The referee reversed the administrator's determinations and sustained the employer's appeal.   Concerning the first issue, the referee concluded in relevant part:  “The claimant was not discharged on November 9, 2010.   Instead the claimant was suspended without a time line to return ․ Shortly thereafter, later in the day ․ [the employer] left the claimant a message that he was to return to work on November 12, 2010.   The claimant received the message but made a decision not to return to work from his two-day suspension ․ When the claimant failed to return to work on November 12, 2010, he quit his job.”  (ROR, p. 30.)

The referee next addressed the second issue and concluded in relevant part:  “The claimant, Brent K. Orozco, voluntarily left suitable work without good cause attributable to the employer ․ As a result, the claimant is disqualified from receiving unemployment compensation benefits pursuant to General Statutes § 31–236(a)(2)(A).”  (ROR, p. 31.)

Thereafter, Orozco filed an appeal to the Board of Review.   The Board reviewed the record, including the recording of the referee's hearing and issued a written decision dated June 23, 2011.  (ROR, pp. 40–45.)

The Board adopted the referee's findings of fact and decision.   Accordingly, the Board affirmed the referee's findings of fact and decision and in so doing, affirmed the referee's denial of benefits and dismissed the appeal.

Thereafter Orozco appealed to the Superior Court and the Board then certified the record to this court.

II

DISCUSSIONA. STANDARD OF REVIEW

Under General Statutes § 31–249b, the court does not undertake a de novo review of unemployment compensation appeals from the employment security board of review and is bound by those facts found by the board and the reasonable conclusions it reached therefrom.   The court may go no further than to determine whether the decision appealed from is unreasonable, arbitrary or illegal.  Burnham v. Administrator, Unemployment Compensation Act, 184 Conn. 317, 321–22, 439 A.2d 1008 (1981).   A party is barred from challenging the board's findings of fact on appeal to the court unless that party has timely filed a motion to correct the findings pursuant to Practice Book § 22–4.   JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422, 828 A.2d 609 (2003);  Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. 170, 176, 968 A.2d 971 (2009).   Since Orozco 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, the court cannot make a further review of those facts.   The board's findings are binding on this court.

B. ANALYSIS

General Statutes § 31–236(a)(2)(A) provides that an individual is ineligible for benefits if he “has left suitable work voluntarily and without good cause attributable to the employer ․” Good cause attributable to the employer is established only if the employee's reason for leaving relates to the wages, hours, or other working conditions of the employment, and he unsuccessfully sought a remedy through those means reasonably available to him before leaving the employment.   See Regs., Conn. State Agencies §§ 31–236–19 through 31–236–22.   An individual who leaves work voluntarily has the burden of proving that the job he left was unsuitable, or that he had good cause attributable to the employer for leaving, and that he had “no reasonable alternative but to terminate that employment.”  Pereira v. Administrator, Unemployment Compensation Act, 6 Conn.App. 658, 660, 506 A.2d 1087, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986).

Moreover, “[w]here there are ambiguous circumstances as to whether an employee voluntarily leaves or is discharged, the employee must clarify such ambiguous circumstances, otherwise such leaving shall be deemed voluntary.”   Dion v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 06 4006120 (July 5, 2007, Moran, JTR).

An employee is also ineligible for benefits if he or she has been discharged or suspended for “wilful misconduct in the course of the individual's employment.” ¹  General Statutes § 31–236(a)(2)(B).

The referee and board by adoption, found the following facts.   On November 9, 2010, Orozco entered the employer's general manager's office without knocking and falsely accused him of being disrespectful.  (ROR, p. 42.)   Orozco accused the general manager of directing profanity at him during a conversation on November 2, 2010.  Id. The general manager was angered by the accusations and unannounced entry into his office.  Id. After a heated discussion, Orozco left the premises and believed he was fired.  Id. However, later in the day, another managerial employee telephoned Orozco and informed him that he was suspended from work for two days but not fired.  Id. Orozco did not return to his employment or contact the employer.  Id. The Board stated the principle that, “if it is unclear whether the claimant has been discharged, the claimant needs to seek clarification of his or her status from the employer.”   (ROR, p. 41.)   The Board then adopted the referee's conclusion that Orozco “voluntarily left suitable work without good cause attributable to the employer and thus he was disqualified from receiving unemployment compensation benefits” pursuant to General Statutes § 31–236(a)(2)(A).  (ROR, pp. 41–42.)

The Court finds that the findings of fact and conclusions of law are not unreasonable, arbitrary or illegal.   Orozco voluntarily quit suitable work without good cause attributable to the employer pursuant to General Statutes § 31–236(a)(2)(A), and is ineligible for benefits.

III

CONCLUSION

For the reasons stated, the court affirms the decision of the Board and the appeal is dismissed.

So ordered,

BY THE COURT

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. “Wilful misconduct” is defined in relevant part as follows:  “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.”  General Statutes § 31–236(A)(16)..  FN1. “Wilful misconduct” is defined in relevant part as follows:  “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.”  General Statutes § 31–236(A)(16).

Wiese, Peter E., J.