Tiffany Ducat v. Administrator, Unemployment Compensation Act (2012)

MEMORANDUM OF DECISION

In this case, the plaintiff, Tiffany Ducat, was employed by Killingly Eye Care, P.C. in Danielson, CT from March 25, 2008 to September 3, 2010.   Her employer approved her request to take time off to get married while her fiancé was on leave from military duty in Afghanistan starting August 17, 2010, and expected her to return to work on August 30, 2010.   Before her return to work date approached, she told her employer that she would not return on August 30 because she wanted to spend more time with her new husband before he returned to duty.   Her employer refused to grant her any more time off due to staffing issues, but offered alternatives, which the plaintiff refused.   On September 3, 2010, the employer informed the plaintiff that she was no longer employed.   The plaintiff applied for unemployment compensation benefits.   That application was initially approved by an administrator on the grounds that she was discharged for reasons other than wilful misconduct.   The employer appealed, and the administrator's decision was reversed by an appeals referee.   The appeals referee found that the circumstances amounted to absenteeism without good cause or justification and, therefore, wilful misconduct for which the plaintiff was ineligible for benefits.   The decision of the appeals referee was upheld by the board of review on further appeal, and the board denied a motion to reopen.   Now, on further appeal to this court, the plaintiff again argues that she should be found eligible for unemployment compensation benefits.   The defendant has filed a motion for judgment seeking judgment in its favor.   For the following reasons, the court upholds the decision of the board of review.   Accordingly, the defendant's motion for judgment is granted, and the plaintiff's appeal is dismissed.

The record discloses the following facts:  The plaintiff was employed by Killingly Eye Care, P.C. in Danielson, CT as an optical technician from March 25, 2008 through September 3, 2010.   The employer approved the plaintiff to take time off to get married while her fiancé was on leave from military duty in Afghanistan, starting August 17, 2010.   The employer expected her to return to work on August 30, 2010.   As that return to work date approached, the plaintiff informed the employer that she would not return on August 30 because she wanted to spend more time with her new husband before he returned to duty.   The employer would not allow the plaintiff to take any more time off without vacation pay.   It was concerned that other employees would ask for time off without pay which would cause a staffing problem.   Instead of working full-time, the employer gave the plaintiff the choice of working half days, take a week off and work the following week without pay, or quit.   The plaintiff refused the employer's offers.   She did not report to work.   On September 3, 2010, the plaintiff e-mailed the employer.   She wrote that she would not return to work.   She told the employer that she was refusing to work without pay because it was illegal.   On September 3, 2010, the employer e-mailed the plaintiff in return and told her that she was no longer employed.

By decision dated October 1, 2010, the administrator initially awarded the plaintiff benefits finding that these circumstances showed that the plaintiff had been discharged for reasons other than wilful misconduct.   However, the employer appealed, and, by decision dated January 7, 2011, the appeals referee reversed that decision.   The appeals referee found the circumstances amounted to absenteeism without good cause and without proper justification.   That was wilful misconduct disqualifying the plaintiff for benefits.   The referee found that the employer expected the plaintiff to return to work on August 30, 2010.   The plaintiff refused to return to work until her husband left for Afghanistan.   The employer was not required to negotiate with the plaintiff, but offered her various alternatives to not working.   Although one alternative was illegal, the referee did not find that point to be pivotal.   The plaintiff refused all of the employer's offers.

The plaintiff appealed to the board of review.   By decision dated July 19, 2011, the board upheld the findings and conclusion of the appeals referee.   It further found that the plaintiff made inconsistent statements in support of her application, and that she continued to oppose returning to work even after her husband returned to Afghanistan on September 1, 2010.

The board ruled that General Statutes § 31–236(a)(2)(B) provides that an individual is ineligible for benefits if he or she was discharged or suspended for wilful misconduct in the course of his or her employment.  General Statutes § 31–236(a)(16) further provides that if the discharge resulted from an 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.   Except with respect to tardiness, for purposes of [this subsection], each instance in which an employee is absent for one day or two consecutive days without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances constitutes a “separate instance.”  Id. Plaintiff was absent for five consecutive days without good cause or proper notice.   That counts as three separate instances of absenteeism.  Regs., Conn. State Agencies § 31–236–26d(f).¹  Thus, the board concluded that the plaintiff was discharged for wilful misconduct.

The board also denied a motion to reopen.   The plaintiff thence appealed to this court.

In her court appeal, plaintiff repeats the arguments that she earlier presented, unsuccessfully, to the board in support of her application for benefits.

The court's standard of review in an unemployment compensation appeal is limited.  “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.”  Latina v. Administrator, Unemployment Compensation Act, 54 Conn.App. 154, 159, 733 A.2d 885 (1999) quoting Mattatuck Museum–Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 276, 679 A.2d 347 (1996).   Both the findings of subordinate facts and the reasonable conclusions of fact made by the agency are binding on this court.  Id. Should the issue involve a question of law, however, the court's review responsibility is broader.   The court must determine “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.”  Id. While a 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.  Id.

In the present case, the court is bound by the findings of subordinate facts and reasonable conclusions of the board.   The plaintiff never sought to correct the board's factual findings, and, thus, she is precluded from attacking the factual findings.   See, Practice Book § 22–4;  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422–23, 828 A.2d 609 (2003) (court cannot review evidence in record when plaintiff failed to file motion to correct the findings of the board).

The court finds that the board's conclusion that the plaintiff was terminated for wilful misconduct is supported by the findings of fact, and is reasonably drawn from those facts.   The court further observes that the plaintiff offers no new grounds for reversal on appeal.   This court finds that the board ruled fairly and within its authority, and it will not reverse that determination.   The case turned on the credibility and persuasiveness of the witnesses.   The agency found the plaintiff to be not credible, and the employer's arguments to be persuasive.   This court cannot substitute its judgment for that of the agency on those points.   It is generally the province of the agency, as trier of fact, to determine the credibility of witnesses and weight of the evidence.  Howell v. Administrator, 174 Conn. 529, 532, 391 A.2d 165 (1978).   The agency acted fairly within the scope of its adjudicatory powers.   The board's decision correctly applies the law to the facts found, and it is rational and logical and not unreasonable or arbitrary.   The decision is upheld.

For all of the foregoing reasons, the defendant's motion for judgment is granted, and the plaintiff's appeal is dismissed accordingly.

THE COURT

Robert F. Vacchelli

Judge, Superior Court

FOOTNOTES

FN1. Reg. Sec. 31–236–26d(f) provides:(f) Consecutive days—Separate Instances.   Where an absence without good cause for absence from work or without notice continued for two or more consecutive days, the Administrator shall rely upon the following table to determine the number of separate instances of absence under this section.Consecutive Days Instance(s) of Absence2 13 24 25 36 3.  FN1. Reg. Sec. 31–236–26d(f) provides:(f) Consecutive days—Separate Instances.   Where an absence without good cause for absence from work or without notice continued for two or more consecutive days, the Administrator shall rely upon the following table to determine the number of separate instances of absence under this section.Consecutive Days Instance(s) of Absence2 13 24 25 36 3

Vacchelli, Robert F., J.