Frank D. McGovern, Jr. v. Administrator, Unemployment Compensation Act (2013)

MEMORANDUM OF DECISION

STATEMENT OF CASE

This is a statutory appeal by the plaintiff, Frank D. McGovern [hereinafter plaintiff], to the Superior Court pursuant to Connecticut General Statutes § 31–249b ¹ concerning the denial of unemployment compensation benefits.   Plaintiff has appealed the decision of the Employment Security Appeals Division Board of Review [hereinafter board] affirming the appeals referee's decision to affirm the administrator's denial of unemployment benefits.   For the reasons stated herein, the court upholds the decision of the board and the plaintiff's appeal is dismissed.

FACTS

The record reveals the following facts.   By a decision issued on February 27, 2012, the administrator ruled the plaintiff ineligible for unemployment benefits effective February 5, 2012.   Specifically, the administrator found that the plaintiff was discharged for willful misconduct in the course of employment, and was therefore ineligible for unemployment benefits.   On March 8, 2012, the plaintiff filed a timely appeal from the administrator's determination to the appeals division.   The appeals referee conducted a hearing de novo on March 26, 2012, made findings of fact, and affirmed the decision of the administrator on March 29, 2012.   Specifically, the appeals referee ruled that the plaintiff was discharged for willful misconduct in the course of employment, and he was therefore ineligible for benefits.   The plaintiff filed a timely appeal to the board of review on April 16, 2012.   The board of review adopted the referee's findings of fact with modification and affirmed the decision of the appeals referee.

The plaintiff was employed as a commissioned car salesman for Toyota of Wallingford from March 14, 2011, until February 6, 2012, when he was terminated for failure to fully document his absences as requested by management.   The plaintiff typically worked six days per week and he was usually off on Thursdays.   The employer's policy regarding sick days, acknowledged by the plaintiff in writing on March 14, 2011, provides in relevant part:  “Sick days are to be used for personal illness or family illness, as well as medical or dental appointments.   In some cases, verification of illness may be required.”   Record, p. 7. The plaintiff is a single father who has a fifteen-year-old daughter.   On January 30, 2012, the plaintiff received word that his daughter, at school at the time, was sick with pink eye and that he should pick her up immediately.   The plaintiff was informed by his daughter's physician that pink eye is contagious.   The plaintiff went to pick up his daughter from school, and on the way called the receptionist “Jessica” at work, and informed her that his daughter was ill and that he would be absent for three to five days.   On Tuesday morning January 31, 2012, the plaintiff sent a text message to his employer, Jeff Carrington, who is no longer with the employer, stating that he has pink eye and bronchitis.   On Tuesday evening, January 31, 2012, the plaintiff sent a text message to Bill Dichello, sales associate, stating that he texted Carrington that morning but did not get a response and that he has bronchitis and pink eye.   In response, Carrington sent a text message to the plaintiff that he would need a doctor's note when he returned to work.

The plaintiff understood that he was required to deliver a general note for the file, a basic documentation describing the basis for his absence.   On Friday, February 3, 2012, the plaintiff went to his doctor requesting a note.   Because his daughter would be returning to school on February 6, 2012, the plaintiff decided to return to work on the same date as reflected by the note.   A note dated February 3, 2012, obtained by the plaintiff from MidState Medical Group, states that the “Pt (plaintiff) was out for 1/30–2/3/2012 for daughter's sickness” Record, p. 6;  and that the plaintiff “may return to work on February 6, 2012.”  Id. When the plaintiff delivered the note on February 6, 2012, the sales manager told him that he needs a note describing why he was absent.   The plaintiff explained that he was “ready to work—what do you want to do.”   Id., p. 35.   When he was asked again for a note, the plaintiff reiterated the same sentiment.   The plaintiff's statement was perceived by the employer as a dismissive effort to undermine the employer's efforts to have the plaintiff obtain a more detailed note explaining why he was absent from Monday, January 30, 2012, through Friday, February 3, 2012, five workdays.   Record, p., 11.

Prior to February 6, 2012, management remained unaware that the plaintiff was never diagnosed with pink eye or bronchitis.   Had the plaintiff explained from the start that he needed to care for his daughter his absences would not have faced the same scrutiny from management.   Indeed, the employer's statement to the adjudicator indicates that if the plaintiff had informed them from the beginning that he was absent because of his daughter's illness the medical documentation would have been acceptable.   Record, p. 11.

The board of review did not adopt the referee's findings of fact nos. three (3) or seven (7).   In addition, the board modified findings of fact 8, 14 and 20 as follows:  The plaintiff called the employer's receptionist indicating that he would be absent for three to five days because he was ill with pink eye and bronchitis.  (Emphasis added.)   The plaintiff understood that the employer wanted medical documentation in relation to his own medical condition.   The employer requested medical documentation of the plaintiff's own illness and fitness to return to work because the plaintiff had indicated he himself was suffering from pink eye and bronchitis.   Finally, the board modified the date in the referee' finding of fact no. 19 to “February 6, 2012.”

The board concluded based on the record, that the employer acted reasonably in requesting documentation of the plaintiff's weeklong absence and his fitness to return to work.   The plaintiff told the employer both in a phone call to the receptionist and a text message to the general manager that he was suffering from bronchitis and pink eye, which the parties agree is contagious.   The board found that the record did not support the referee's finding, that the plaintiff called and advised the receptionist his daughter was ill.   At the referee's hearing, the employer presented hearsay testimony that the plaintiff had called the employer's receptionist on January 30, 2012, stating that he would be absent because he was suffering from bronchitis and pink eye.   The plaintiff provided inconsistent testimony in rebuttal, and admitted at the administrator's predetermination hearing that he had told the receptionist he would be absent for three to five days because he had pink eye and bronchitis.   Record, pp. 9, 56.   He also told the administrator's adjudications specialist that he had seen a doctor who advised him that he was suffering from these conditions and that he had the same thing as his daughter, who had been diagnosed with pink eye.   The board therefore found, based upon this evidence, that the plaintiff called the employer and advised the employer that he was suffering from two medical conditions.   The plaintiff also sent the employer a text message with this same information.   The board concluded “that the employer had acted reasonably in requesting documentation that the [plaintiff] was sick during the week and that he was cleared to return to work” because he represented via a telephone conversation with the employer and a text message to the employer that “he was suffering from two medical conditions.”   Record, p. 56.   The plaintiff, however, only provided documentation “corroborating his daughter's illness.”   Record, p. 57.   Based on the record, the board concluded that the plaintiff “committed deliberate misconduct by failing to provide the medical documentation requested by his employer in connection with his final absence.”   Record, p. 57.   The board affirmed the referee's decision denying the plaintiff unemployment benefits and dismissed the plaintiff's appeal.   Following the decision of the board the plaintiff appealed the decision of the board to the Superior Court.  General Statutes § 31–249b.   The court heard argument on the plaintiff's appeal on May 6, 2013.

DISCUSSION

“In the processing of unemployment claims ․ the administrator, the referee and the employment security board of review decide the facts and then apply the appropriate law ․ [The administrator] is charged with the initial responsibility of determining whether claimants are entitled to unemployment benefits.  [See generally] General Statutes § 31–241 ․ This initial determination becomes final unless the claimant or the employer files an appeal within twenty-one days after notification of the determination is mailed.   [General Statutes § 31–241(a) ].   Appeals are taken to the employment security appeals division which consists of a referee section and the board of review.  [See] General Statutes §§ 31–237a, 31–237b ․ The first stage of claims review lies with a referee who hears the claims de novo.   The referee's function in conducting this hearing is to make inquiry in such manner, through oral testimony or written and printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the provisions ․ of the law.  General Statutes § 31–244.   Such appeals are heard on the record of the hearing before the referee although the board may take additional evidence or testimony if justice so requires.   Any party, including the administrator, may thereafter continue the appellate process by appealing to the Superior Court and, ultimately, to [the Appellate and Supreme Courts].”  Ray v. Administrator, Unemployment Compensation Act, 133 Conn.App. 527, 531, 533–34, 36 A.3d 269 (2012).

The court's standard of review in an unemployment compensation appeal is limited.   The court in hearing this appeal does not hear the case de novo.  “In an appeal to the court from a decision of the board, the court is not to find facts.”  Id., 533.  “The court may not substitute its conclusions for those of the board.”  Id., 534.  “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.”  (Citations omitted;  quotation marks omitted.)  Latina v. Administrator, Unemployment Compensation Act, 54 Conn.App. 154, 159, 733 A.2d 885 (1999).  “The court must not retry the facts nor hear evidence ․ If, however, the issue is one of law, the court has the broader responsibility of determining 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.   Although the 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.”  United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 385–86, 551 A.2d 724 (1988).

“[A]ppeals from the board to the Superior Court are specifically exempted from governance by General Statutes § 4–166, et seq., the Uniform Administrative Procedure Act. All appeals from the board to the court are controlled by General Statutes § 31–249b.  Section 31–249b specifically provides that any finding of the board ‘shall be subject to correction only to the extent provided by section 519 [now § 22–9] of the Connecticut Practice Book ․’ Practice Book § 519(a) specifies that the trial court ‘does not retry the facts or hear evidence.   It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether ․ there was any evidence to support in law the conclusion reached.  [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of the witnesses ․’ Practice Book § 515A [now § 22–4] provides the mechanism for the correction of the board's findings.   If the appellant desires that the findings be corrected, the appellant must, within two weeks of the filing of the record in the Superior Court, file with the board a motion for correction of the findings ․ [A] motion for correction is a necessary prerequisite to a challenge to the board's decision.   Because the plaintiff failed to comply with that prerequisite, he can not challenge the board's findings on appeal to the Superior Court ․

“Our Supreme Court ratified this precedent in JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422, 828 A.2d 609 (2003), concluding that a plaintiff's ‘failure to file a timely motion for correction of the board's findings in accordance with [Practice Book] § 22–4 prevents further review of those facts found by the board ․’ “ Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. 175–76, 968 A.2d 971 (2009).  Practice Book § 22–4 “provides the mechanism for the correction of the board's findings” [and a timely motion to correct has been held to be] “a necessary prerequisite to a challenge to the board's decision.”  Shah, supra, 114 Conn.App. 175.   The absence of such a motion to correct “prevents further review of those facts found by the board ․ and is determinative of the appeal.”  Shah, supra, 114 Conn.App. 176.

The record reflects that the plaintiff in the present case did not file a motion to correct the board's findings.   Therefore, the plaintiff cannot challenge the factual findings, which findings are now conclusive.   Based on the plaintiff's failure to file a motion to correct, this court's review is limited “to determine, on the record, whether there is a logical and rational basis for the decision of the [board] or whether, in the light of the evidence, [the board] has acted illegally or in abuse of [its] discretion.”   (Citation omitted;  internal quotation marks omitted.)  Calnan v. Administrator, Unemployment Compensation Act, 43 Conn. 779, 785, 686 A.2d 134 (1996).

This appeal is governed by Connecticut General Statutes 31–236(a)(2)(B), which provides in relevant part that “[a]n individual shall be ineligible for benefits ․ if, in the opinion of the administrator, the individual has been discharged ․ for ․ willful misconduct in the course of the individual's employment ․” Connecticut General Statutes § 31–326(a)(16) provides in relevant part that “ ‘willful misconduct’ means deliberate misconduct in willful 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 ․” Section 31–236(a)(16) further provides in relevant part that “in the case of absence from work, ‘willful 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 ․” 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.  Regs. Conn. State Agencies, § 31–236–26.

In the present case the plaintiff was absent for five consecutive days without good cause or proper notice.   That counts as three separate instances of absenteeism, and therefore qualifies as willful misconduct by the plaintiff.   Regs. Conn. State Agencies § 31–236–26d(f).²

The plaintiff's contention that the appeals referee improperly allowed the admission into evidence hearsay evidence by way of an unauthenticated text message from a former employee, as well as the employer's version of a telephone call between the plaintiff and a receptionist who was not present at the March 20, 2012 hearing is misplaced.   Appeals to the board of review from the employment security referee's decision “may be heard on the record of the hearing before the referee or the board may hear additional evidence or testimony.”  General Statutes § 31–249.  “The General Assembly expressly has provided that “[t]he referees and the board shall not be bound by the ordinary common law or statutory rules of evidence or procedure.”  Addona v. Administrator, Unemployment Compensation Act et al., 121 Conn.App. 355, 363 (2010).  Connecticut General Statutes § 31–244a provides in relevant part that the referees and board “shall make inquiry in such manner, through oral testimony and written and printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the provisions of this chapter.   The referee's admission into evidence hearsay evidence was not unreasonable or improper.   The board may review the record before the referee, adopt and/or modify findings as it deems appropriate, and issue a conclusion based on findings of fact.   See General Statutes § 31–249.

CONCLUSION

The board's ruling is reasonable and consistent with the applicable statute, regulations and case law, as the record supports its finding that the plaintiff was terminated for willful misconduct in the course of his employment pursuant to General Statutes § 31–236(a)(2)(B).  Accordingly, the board's decision to affirm the referee's decision and dismiss the plaintiff's appeal is supported by the record, consistent with the law, and was not unreasonable, arbitrary, or illegal.   The court therefore affirms the board's decision and dismisses the plaintiff's appeal.

Wilson, J.

FOOTNOTES

FN1. General Statutes § 31–249b provides in relevant part:  “At any time before the board's decision has become final, any party, including the administrator, may appeal such decision, including any claim that the decision violates statutory or constitutional provisions, to the superior court for the judicial district of Hartford or for the judicial district wherein the appellant resides.   Any or all parties similarly situated may join in one appeal ․”.  FN1. General Statutes § 31–249b provides in relevant part:  “At any time before the board's decision has become final, any party, including the administrator, may appeal such decision, including any claim that the decision violates statutory or constitutional provisions, to the superior court for the judicial district of Hartford or for the judicial district wherein the appellant resides.   Any or all parties similarly situated may join in one appeal ․”

FN2. Connecticut State Agencies Regulation § 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“Valid [state] agency regulations have the force of statutes and constitute law.”  Acro Technology v. Administrator Unemployment Act, 25 Conn.App. 130, 135, 593 A.2d 154 (1991)..  FN2. Connecticut State Agencies Regulation § 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“Valid [state] agency regulations have the force of statutes and constitute law.”  Acro Technology v. Administrator Unemployment Act, 25 Conn.App. 130, 135, 593 A.2d 154 (1991).

Wilson, Robin L., J.