Duct & Vent Cleaning of America v. Administrator, Unemployment Compensation Act et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT

I. STATEMENT OF CASE

This is a statutory appeal brought by the employer, Duct and Vent Cleaning of America, Inc., from a determination that the claimant was eligible for unemployment benefits.   The Employment Security Board of Review certified and filed with the court the record of proceeding pursuant to Conn. Gen.Stat. Section 31–249b.   The record indicates that the Administrator made an initial determination that the claimant was eligible for unemployment benefits effective February 26, 2012 and notified the employer of its chargeability on March 21, 2012.   The employer filed a timely appeal on March 23, 2012 from the Administrator's initial determination.   The Appeals Referee reversed the Administrator's decision on May 7, 2012 following a de novo hearing.   On May 8, 2012, the claimant filed a timely appeal of the Appeals Referee's decision to the Board of Review.  Conn. Gen.Stat. Section 31–248.   The Board of Review reversed the Appeals Referee's Decision on September 27, 2012.   The employer filed a timely appeal to this Court on October 17, 2012.  Conn. Gen.Stat. Section 31–249b.

The court has reviewed the record certified to it by the Board of Review, the defendant's motion for judgment, the plaintiff's pleadings, and has considered all of the submissions and the arguments of the Assistant Attorney General.

This case was continued in order for Duct & Vent Cleaning of America to get an attorney, but no attorney has filed an appearance.   The plaintiff did not appear at the hearing.   Accordingly, this court takes the matter on the papers.

The court has no authority to find facts in an unemployment compensation appeal hearing.   It is limited to reviewing the record certified to it by the Board of Review.   Credibility of witnesses is evaluated at the administrative level and not in this court hearing.   In order for the court to review the facts, a motion to correct the findings must have been filed.   That was not done in this case, although it is clear that notice was given concerning that procedure in the decision itself sent to the plaintiff.

The court understands the claim of the plaintiff, but is by law required to treat this as a record review not a new hearing.   The issue, therefore, is whether the decision of the Board of Review was unreasonable, arbitrary, illegal, or an abuse of discretion in determining that the claimant was not disqualified from receiving unemployment benefits effective February 26, 2012.

As the Board of Review found:

We agree with the referee that cleaning trucks was one of the claimant's responsibilities as a service representative.   However, the referee failed to consider whether there was some other basis to find that the order was unreasonable.   We find that it was an unreasonable directive for the employer to require the claimant to clean trucks in 20–degree weather without proper attire.   Although the claimant should have reported to work with his uniform, but the employer did not discharge him for reporting to work without his uniform.   Therefore, we also find that the claimant had good cause to refuse to follow the employer's directive.   Accordingly, we conclude that the employer discharged the claimant for reasons other than wilful misconduct in the course of his employment.

Board of Review Decision September 27, 2012 at 3 (Rec. At 39).

Moreover, the appeal of the plaintiff is procedurally defective because upon information and belief Duct & Vent Cleaning of America, Inc. is a corporation and, as such, may not prosecute an appeal in Superior Court without an attorney.   Video Studio v. Administrator, Unemployment Compensation Act, Superior Court, Judicial District of New London at Norwich, Docket No. CV 94 1054845 (March 15, 1996) (1996) WL 155378).   It is a basic principle of Connecticut law that a corporation may not appear pro se.  Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn.App. 543, 546, 642 A.2d 62 (1994).

The court does not retry the facts or hear evidence.   The court finds the decision of the Board of Review on the merits follows reasonably from the facts found, and the correct application of the law to those facts.   The decision is not arbitrary, capricious, or contrary to law.

The decision is affirmed, and the defendant's Motion for Judgment, Motion # 102.00 dated February 19, 2013 is granted.

The appeal is dismissed.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

Karazin, Edward R., J.T.R.