Carleton E. Czaikowski v. Administrator, Unemployment Compensation Act et al. (2012)

MEMORANDUM OF DECISION ON PLAINTIFF'S APPEAL FROM THE CORRECTED DECISION OF THE BOARD OF REVIEW OF THE DEPARTMENT OF LABOR

FACTS AND PROCEDURE:

The plaintiff was employed by Konover Commercial Corp., as a site maintenance supervisor at Uncas on the Thames, which is a commercial campus of state department buildings from September 15, 2007 through August 3, 2009.   The plaintiff was discharged by his said employer on August 3, 2009.   The plaintiff was determined ineligible for unemployment compensation benefits because he was discharged from his employment for wilful misconduct in the course of his employment.   The Board of Review (hereinafter “Board”) adopted portions of the Appeals Referee's Decision as its own and made additions/substitutions as to some of the findings of fact.   The Board's corrected decision affirmed the decision of the Appeals Referee, and dismissed the plaintiff's appeal to the Board.   The plaintiff timely filed a petition of appeal to this Court.

The employer offered three specific reasons for discharging the plaintiff:  his failure to correct the installation of a canopy;  his failure to copy the employer's president and property manager on all e-mail correspondence with vendors;  and its impression that the plaintiff's assistant was performing a majority of the plaintiff's work.   At the hearing before the referee a witness testified that the canopy issue was not the final incident and that the final incident related to the plaintiff's failure to copy e-mails following a storm in July 2009.   The Board noted that the plaintiff's alleged failure to project the proper image does not constitute wilful misconduct.   Further, it stated that “the employer did not offer any specific incidents showing that the claimant improperly delegated duties to his assistant.   Although the employer was aware that the plaintiff showed his assistant his performance improvement plan when it issued the June 6, 2009 warning, it did not discharge him for that conduct at the time.”

A hearing was held before this Court on March 9, 2012.   Counsel for both sides were present and entered into oral argument and each side had filed trial briefs.

The Court is well aware that the hearing before this Court is not a trial de novo and must adhere to the facts found by the Referee and the Board.

The main issue is whether the plaintiff's failure to include both his supervisor and the company president in all e-mail exchanges with the employer's vendors constituted wilful misconduct.

The employer bears the burden of proving that it discharged the claimant (plaintiff) for a final incident that constitutes wilful misconduct within the meaning of the Connecticut Unemployment Compensation Act.

The employer's witness testified that the issue of failing to correct the installation of a canopy was not the final incident that precipitated the discharge and it is clear, as was admitted at the hearing before this court, that the issue of the employee (plaintiff) permitting his assistant to appear that she was performing a significant portion of the work and criticized the claimant's showing his performance improvement plan to his assistant took place prior to June 5, 2009.   See paragraph 8 of the Board's decision.   Therefore, the sole issue that could be the final decision chronologically and was the reason given for the discharge of the plaintiff was his failure to copy e-mail messages to his supervisor and to the president of the company.

On June 5, 2009, Morazes (the plaintiff's supervisor) issued the plaintiff a final written warning for failing to send copies of e-mail messages to the employer.   The employer specifically referenced an e-mail the claimant sent to a client on May 18, 2009, which was not copied to both Morazes or Judd (the president of the company).   The warning indicated “this is mandatory.   Should this occur again, your employment will be terminated.”  (Emphasis added.)   See paragraph 8 of the Board's corrected decision.   On July 9, 2009, the plaintiff forwarded a series of e-mail messages to Morazes but he did not copy President Judd. On July 20, 2009, the plaintiff forwarded a July 15, 2009, email to Morazes but not to Judd. See paragraphs 12 & 13 of the corrected decision of the Board.

In its closing paragraph on page 5 of its decision the Board stated, inter alia, “․ the claimant failed to copy the employer's president on both the July 9 and on July 20, 2009, e-mail messages he sent to Morazes ․ the claimant deliberately refused to follow the employer's clear directive.   We thus concur with the Referee that the employer discharged the claimant for deliberate misconduct.”

It is true as stated by plaintiff's attorney that the discharge would be valid only as a result of a final incident.   Certainly, the failure to copy e-mails to the plaintiff's supervisor and the president of the company was chronologically the final incident, the plaintiff having been discharged August 3, 2009, shortly after the failures of July 9 and July 20, 2009.

However, the main thrust of the plaintiff's argument is that the July 9 and the July 20th failures were two separate incidents and despite the claims of the defendant, two incidents cannot be a final incident.   The Court disagrees and concludes that based upon the warning given on June 5, 2009, that the requirement to copy the e-mails to the supervisor and the president was mandatory and that should it occur again he was warned that his employment would be terminated and that he did not comply justified the termination.   Further, this Court concludes that the final incident could be July 9 or July 20, 2009.   The reason for the discharge was on July 9, and the fact that the Board added a similar incident on July 20, 2009, does not negate the violation of July 9, 2009.   This Court is not going to torture the wording of the decision because the plaintiff wilfully violated his orders on two different occasions, July 9 and July 20.   Either violation, on July 9 or July 20, was a valid reason and a final incident warranting the discharge of the plaintiff for wilful and deliberate misconduct.   The Board did not act arbitrarily or in abuse of its discretion.

Based upon the above, the plaintiff's appeal is dismissed.

Rittenband, J.T.R.

Rittenband, Richard M., J.T.R.