Bryant Mercado v. Administrator, Unemployment Compensation Act et al. (2012)

MEMORANDUM OF DECISION

I

PROCEDURAL HISTORY

This is an employment compensation appeal to the Superior Court by the employee, Bryant Mercado.   Mercado is appealing the September 30, 2011 decision of the Employment Security Division Board of Review (“Board”) in which the Board affirmed the referee's determination that he was not eligible to received benefits.  (ROR, p. 80.)

The following procedural background is relevant to the appeal.   On January 11, 2011 the administrator of the Unemployment Compensation Act found that Mercado was eligible for unemployment compensation benefits.   The administrator concluded in relevant part:  “the claimant was terminated for refusing to drive a load that was illegal by putting him overt (sic) the State mandate for consecutive hours of work.   He did ask to have it changed but it fell upon deaf ears.   He did refuse the offer but he shows sufficient cause since it would be illegal.   No deliberate misconduct.   Separation and benefits are approved.”   (ROR, p. 14.)

The employer appealed the decision of the administrator on the ground that Mercado was discharged on February 16, 2010 for wilful misconduct in that there was a “violation of standard of conduct for Burns Logistics.   Leaving work without permission, neglecting his duty.”  (ROR, p. 18.)   The appeal was heard by a referee, who stated that, “[t]he issue raised by this appeal is whether the employer ․ discharged the claimant ․ for deliberate misconduct in the course of his employment.”  (ROR, p. 52.)

In the June 30, 2011 decision the referee made findings of fact, conclusions of law and an order.  (ROR, pp. 51–54.)   The referee reversed the administrator's ruling and sustained the employer's appeal.   The referee concluded in relevant part:  “An employee's refusal to comply with an order by his employer regarding a matter of job performance or conduct during working hours demonstrates a disregard of the employer's interests and constitutes wilful misconduct unless it is established that the order was unreasonable or that the employee had good cause for the refusal ․

“Even if the run took longer than fourteen hours, the claimant had the option to stop working after fourteen hours and rest.   He was provided cash by the employer to do so.   As such, the employer's work orders were not unreasonable and the claimant has not provided good cause for the refusal.   The claimant's conduct was therefore insubordinate and rises to the level of deliberate misconduct in wilful disregard of the employer's interests.

“The employer, Burns Logistics, discharged the claimant, Bryant Mercado for deliberate misconduct in the course of his employment as a result, the claimant is disqualified from receiving unemployment compensation benefits pursuant to General Statutes, § 31–236(a)(2)(B).”  (Citations omitted.)  (ROR, p. 53.)

Thereafter, Mercado 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 September 30, 2011.  (ROR, pp. 80–83.)   The Board modified several factual findings and affirmed as modified the referee's decision.   In so doing, the Board determined that, “[t]he claimant is disqualified from receiving unemployment compensation benefits effective December 12, 2010.”  (ROR, p. 82.)

Thereafter, Mercado appealed to the Superior Court.   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).

B. ANALYSIS

An employee is ineligible for benefits if he or she has been discharged or suspended for “wilful misconduct in the course of the individual's employment.”  General Statutes § 31–236(a)(2)(B);  Claudio v. Administrator, Unemployment Compensation Act, 134 Conn.App. 105, A.3d (2012).   In General Statutes § 31–236(a)(16), “wilful misconduct” is defined in relevant part as follows:  “[D]eliberate 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 ․”

The Referee and Board by adoption, found the following facts as modified.   “The record reveals that the claimant worked for the employer as a truck driver from October 2, 2009, until December 16, 2010, when the employer discharged him.   For the shift in question, the claimant began working at 9:00 p.m. The claimant's first assignment was to make a delivery from the employer's facility in Rocky Hill, Connecticut to a client in Dedham, Massachusetts.   The claimant made the delivery and returned to Rocky Hill at 3:00 a.m. The employer directed the claimant to make another delivery, to Medford, Massachusetts, but the claimant refused because he believed it would require him to exceed the maximum allowable hours of driving under the law.   The claimant did not walk off the job.   He left because the employer did not assign any work to him other than the second delivery which he refused to make and because his superior, Jamie Hill, told him to leave.   Although Hill told the claimant to leave, he did not advise the claimant that it was acceptable to refuse the assignment to travel to Medford.

“Despite the employer's contention that its client would permit the claimant to make a delivery prior to 7:00 a.m., the claimant credibly testified that a Medford ordinance prohibits deliveries prior to 7:00 a.m. However, the employer provided evidence that the claimant could have driven to Medford, had the truck unloaded at 7:00 a.m., and returned to Rocky Hill prior to the expiration of the fourteenth hour at 11:00 a.m ․ Thus, it was not unreasonable for the employer to request that the claimant attempt the delivery.

“Furthermore, the claimant has not refuted the employer's contention that he could have used the cash advance which the employer provided him to stay at a hotel if necessary to avoid exceeding the driving limitation.   Since the employer's order was reasonable and the claimant lacked good cause to refuse to make the delivery, we concur in the referee's conclusion that the employer discharged him for wilful misconduct in the course of his employment.”  (ROR, pp. 81–82.)

The Court finds that the Findings of Fact and Conclusions of law are not unreasonable, arbitrary or illegal.   Mercado was terminated for wilful misconduct and is disqualified from receiving unemployment compensation 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

Wiese, Peter E., J.