Joseph Davies v. Administrator Unemployment Compensation Act (2013)

MEMORANDUM OF DECISION

The issue before the court is whether the decision by the board of review to disqualify the plaintiff from receiving unemployment compensation benefits because the employer has discharged the plaintiff for willful misconduct in the course of employment, was arbitrary, capricious and an abuse of discretion.

The plaintiff/petitioner, Joseph Davies, filed a claim for unemployment benefits at the office of unemployment compensation.   On August 10, 2010, the administrator ruled that the plaintiff is eligible for unemployment compensation benefits.   Specifically, the administrator found that the plaintiff was not discharged for willful misconduct in the course of employment.

On August 31, 2010, the plaintiff's employer, Sikorsky Aircraft Corporation, filed an appeal from the administrator's decision to the appeals referee.   On December 2, 2010, the referee conducted a de novo hearing and made the following findings of fact.   From October 22, 2007, until July 13, 2010, the plaintiff worked as an electrical covering inspector for the employer.   At the time of hire, the employer provided the plaintiff with a written company policy that prohibits falsifying documents, including providing false information to the employer.   On February 2, 2010, after receiving medical treatment for back pain, the plaintiff received a medical note from Gary Spector, a doctor at Internal Medicine of Milford.   The note stated, in relevant part:  “The above named patient was seen today.   He/she may return to work on 2/3/10.   Remarks:  This note is to cover pt from 2/1/2010–2/2/2010.”   On February 2, 2010, the plaintiff altered the note to read, “this note is to cover pt from 2/1/2010–2/3/2010.”

On February 3, 2010, the plaintiff overslept, and appeared for work three hours late.   The plaintiff left the medical note on the desk of his supervisor, Carlos Medeiros.   Later in 2010, upon receiving the note from Medeiros, the employer's human resource department commenced an investigation as to whether the plaintiff altered the note.   During the investigation, Carol Kagdis, the medical director, contacted Spector's medical office.   A manager named Rita told Kagdis that the secretary did not alter the claimant's note.   Rita also stated that it is the medical office's practice not to edit any return to work notes, but to instead write a new note.   Moreover, Rita advised Kagdis that the medical staff is not allowed to edit notes without the doctor's prior approval.

In June 2010, officers of the human resources department held a meeting with the plaintiff to discuss the altered medical note.   At that time, the plaintiff claimed that Spector's secretary altered the medical note.   On July 13, 2010, the plaintiff was discharged by the employer.

Relying on the preceding facts, in a December 9, 2010 decision, the referee reversed the administrator's ruling, and concluded that the plaintiff was terminated for willful misconduct and was, therefore, not entitled to unemployment benefits.   On December 13, 2010, the plaintiff appealed to the board of review (the board), and requested an evidentiary hearing.   On March 25, 2011, the board denied the plaintiff's request for the evidentiary hearing for failure to show, affirmed the referee's decision to deny the plaintiff unemployment benefits, and dismissed the appeal.

In reaching its decision, the board adopted the referee's findings of fact.   However, the board modified the referee's decision, and noted that the referee analyzed the case under the rule violation definition of “willful misconduct.”   In contrast, the board applied the “deliberate misconduct” definition of “willful misconduct,” as that definition applies to situations where a specific rule is not necessary to place employees on notice that certain conduct is not acceptable because it is clearly contrary to the employer's interests.   The board further explained that, under the “deliberate misconduct” standard, the board does not need to determine whether it was reasonable for the employer to discharge the employee instead of imposing a lesser discipline, or whether the employer enforces its policies uniformly.

In finding that the plaintiff engaged in deliberate misconduct that was clearly contrary to the employer's interest, the board relied on the referee's conclusion that the plaintiff altered and falsified the medical note.   The board stated that the plaintiff does not deny that the note was changed to cover the plaintiff's absence through February 3, 2010.   Instead, the plaintiff's defense was that the doctor's secretary altered the note.   The board implicitly held that the plaintiff's defense is not persuasive for at least two reasons.   First, the individual who altered the note did not draw a line through it or initial the change.¹  Second, the plaintiff had a strong motivation to alter the note because he reported late for work on February 3, 2010.

On April 28, 2011, the plaintiff filed an untimely motion to reopen the decision of the board.   The board denied the motion on July 19, 2011.   Pursuant to General Statutes § 31–249b, the plaintiff filed a timely appeal to the Superior Court on August 18, 2011.   In his appeal, the plaintiff claims that the board erred in:  (1) affirming the decision of the referee;  (2) denying the plaintiff's request for an evidentiary hearing;  and (3) denying the plaintiff's motion for summary judgment.   This appeal is presently before the court.

On October 23, 2012, the plaintiff filed a brief in support of his appeal.   On November 29, 2012, the defendant, the administrator of the Unemployment Compensation Act (administrator), filed a reply brief.   The matter was heard on January 16, 2013.

“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.”  (Internal quotation marks omitted.)  Latina v. Administrator, Unemployment Compensation Act, 54 Conn.App. 154, 159, 733 A.2d 885 (1999), quoting Mattatuck Museum–Mattatuck Historical Society v. Administrator, 238 Conn. 273, 276, 679 A.2d 347 (1996).   “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.”  (Citations omitted.)  United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385–86, 551 A.2d 724 (1988).

Moreover, the plaintiff failed to file a motion to correct the board's factual findings, pursuant Practice Book § 22–4.²  The absence of such a motion prevents this court from considering any facts that are not in the certified record.   See JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422, 828 A.2d 609 (2003) (“[the plaintiff's] failure to file a timely motion for correction of the board's findings in accordance with § 22–4 prevents further review of these facts found by the board”).   In other words, “the court may only consider whether the record contains evidence to support the Board's conclusions.”   Wiggins v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Haven, Docket No. CV 10 5033260 (December 29, 2010, Wilson, J.).

As to the plaintiff's claim that the board erred in denying his motion to reopen, General Statutes § 31–249a(b) provides, in relevant part:  “Any decision of the board may be reopened ․ on grounds of new evidence or if the ends of justice so require upon good cause shown.”   Similarly, § 31–237g–50(a) of the Regulations of Connecticut State Agencies provides in relevant part:  “The Board may reopen ․ a Board decision on an appeal if the Board determines, for good cause shown, that new evidence or the ends of justice so require.”   The board's decision to open a case is discretionary, and the court reviews the board's decision only to determine whether it acted unreasonably, arbitrarily, or illegally.  Kronberg v. Administrator, 36 Conn.Sup. 210, 211–12, 416 A.2d 186 (1980).

The plaintiff appeals on two grounds.   Firstly, the decision of the board is arbitrary and capricious because the board used a different standard after the hearing concluded and prejudiced the plaintiff.   Specifically, the board arbitrarily switched to a “deliberate conduct” definition of willful misconduct, while the referee used the rule violation standard.   Secondly, the decision by the board is not supported by substantial evidence.   As to the second ground, the plaintiff argues:  (1) the board improperly relied on double hearsay;  (2) the employer did not produce the policy manual which it claimed was violated;  (3) nonparty policy manual was improperly used to bolster the credibility of nontestifying employee;  (4) the referee erred in the analysis and conclusion of law, and the board erred in adopting the same;  (5) there was no proffer that manual was uniformly enforced and reasonably applied, and (6) there was no proffer of impact on significant employer interest.

“Whether the circumstances of an employee's termination constitute wilful misconduct on the employee's part is a mixed question of law and fact.   As a general rule, [t]he application of statutory criteria to determine a claimant's eligibility for unemployment compensation ․ involves mixed questions of fact and law in which the expertise of the administrative agency is highly relevant.”  (Internal quotation marks omitted.)  United Parcel Services, Inc. v. Administrator, supra, 209 Conn. 386.  “Moreover, the construction placed upon a statute or regulation by the agency responsible for its enforcement and administration is entitled to great deference.   See Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S.Ct. 781, 93 L.Ed.2d 819 (1986).”   Strawberry Hill Animal Hospital, LLC v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 05 4007548 (August 8, 2006, Lewis, J.T.R.).

This appeal is governed by 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 ․” Section 31–236(a)(16) defines “willful misconduct” as “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 ․” (Emphasis added.)

Section 31–236–26 of the Regulations of Connecticut State Agencies provides, in relevant part:  “To find that any act or omission is willful misconduct in the course of employment as defined in § 31–236–26c of the Regulations of Connecticut State Agencies, the Administrator shall find that:  (1) the individual committed deliberate misconduct in willful disregard of the employer's interest, as defined in § 31–236–26a of the Regulations of Connecticut State Agencies;  or (2) the individual committed a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied ․” (Emphasis added.) ³

Board Did Not Arbitrarily Switch to a “Deliberate Conduct” Definition

The plaintiff argues that the decision of the board is arbitrary and capricious because the board used a different standard after the hearing concluded.   In particular, the board arbitrarily switched to a “deliberate conduct” definition of willful misconduct.   The plaintiff contends that he was entitled to reopen the case when the board changed the applicable standard.

The plaintiff has failed to properly take into account the fact that the board is not bound by the referee's findings of fact, analysis, or conclusions.   “ ‘De novo’ is defined as ‘anew;  afresh;  a second time’ and a ‘hearing de novo’ is defined as ‘a new hearing or a hearing for the second time, contemplating an entire trial in same manner in which matter was originally heard and a review of previous hearing.’   Black's Law Dictionary (5th Ed.1979).”   State v. Lugo, Superior Court, judicial district of Hartford, Docket No. CR 04 578928 (September 27, 2005, Holden, J.).   Moreover, as previously defined, “willful misconduct” is a 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.   Under de novo review, the board essentially treats the case as a new hearing, and it is within the board's discretion to apply a different standard of willful misconduct.   Therefore, the board's decision is not arbitrary and capricious because the board switched to a “deliberate conduct” definition of willful misconduct, while the referee used the rule violation standard.

The plaintiff further argues that the board used the “deliberate misconduct” standard of willful misconduct in order to eliminate the need to determine whether it was reasonable for the employer to discharge the employee rather than impose a lesser discipline, or whether the employer enforces policies uniformly.   However, the plaintiff's argument is misguided.   The willful misconduct standard has two alternative prongs, and the board has the discretion, under de novo review, to choose which standard it will apply.   The board's motivations for choosing to apply the “deliberate misconduct” standard are irrelevant.

The plaintiff also argues that the board substituted its judgment for the referee by finding an additional incentive for the plaintiff to alter the note.   Specifically, the board decided that the note would allow the plaintiff to return to work late on February 3, 2010, as opposed to the referee's finding that the alteration would permit the plaintiff to return to work on February 4, 2010.   The plaintiff claims that this alteration is significant because the plaintiff had evidence of accrued time, and he would not have lost any pay.   The plaintiff contends that the evidence of accrued time is relevant under the “deliberate conduct” standard, even though the referee ruled that the proffer of accrued time was not relevant under the rule violation standard.

In the present case, the court is bound by the board's findings of fact, including the fact that the plaintiff altered the note and that the plaintiff had the motivation to do so in order to excuse his late return to work on February 3. These facts are sufficient to establish that the plaintiff engaged in dishonest falsification in obtaining medical leave from work.   Moreover, the plaintiff's absence has an obvious negative effect on the employer's production.   As such, these facts provide sufficient evidence to support the board's conclusion that the plaintiff engaged in deliberate misconduct in willful disregard of the employer's interest.   The board was not required to consider the evidence of accrued time in order to reach the rational and reasonable conclusion that the plaintiff acted contrary to the employer's interest.

Decision by the Board is Supported by Substantial Evidence

The plaintiff's first three arguments under this ground essentially attack the reliability of the evidence that the board used in order to reach the conclusion that the plaintiff was terminated for willful misconduct.   Specifically, the plaintiff is arguing that the board improperly relied on double hearsay,⁴ that the employer did not produce the policy manual which it claimed was violated,⁵ and that a nonparty policy manual was improperly used to bolster the credibility of a nontestifying employee.   Yet, the plaintiff fails to cite to any cases that suggest that these types of evidence are impermissible and that this court may overrule the board's holding on one of these grounds.⁶  More importantly, the court is bound by the findings of facts and reasonable conclusions of the board.   The plaintiff never attempted to correct the board's factual findings, and, therefore, he is precluded from attacking the factual findings or the evidence on which they are based.

The plaintiff also argues that the referee erred in his analysis and conclusion of law, that the board erred in adopting the same, and that there was no proffer that the manual was uniformly enforced and reasonably applied.   A close inspection of the plaintiff's memorandum further reveals that these arguments ultimately focus on alleged errors by the referee.   The question of whether the referee erred in his decision is not before the court.⁷  Moreover, the argument that there was no proffer that the policy manual was uniformly enforced or applied is not relevant to the board's analysis under the deliberate misconduct standard.   See General Statutes § 31–236(a)(16).

This Court finds that the board's conclusion that the plaintiff was terminated for willful misconduct is supported by the findings of fact, and is reasonably drawn from those facts.   The board's decision correctly applies the law to the facts found, and it is rational and logical, and not unreasonable or arbitrary.   For the foregoing reasons, the board's decision is affirmed, and the plaintiff's appeal dismissed.

JOHN W. MORAN, J.T.R.

FOOTNOTES

FN1. Presumably, this fact is significant because the manager at Spector's practice stated that the medical office's practice is to not edit any return to work notes, but to instead write new notes..  FN1. Presumably, this fact is significant because the manager at Spector's practice stated that the medical office's practice is to not edit any return to work notes, but to instead write new notes.

FN2. Practice Book § 22–4 provides, in relevant part:  “If the appellant desires to have the finding of the board corrected he or she must, within two weeks after the record has been filed with the [S]uperior [C]ourt, unless the time is extended for cause by the board, file with the board a motion for the correction of the finding and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for ․”.  FN2. Practice Book § 22–4 provides, in relevant part:  “If the appellant desires to have the finding of the board corrected he or she must, within two weeks after the record has been filed with the [S]uperior [C]ourt, unless the time is extended for cause by the board, file with the board a motion for the correction of the finding and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for ․”

FN3. Section 31–236–26a of the Regulations of Connecticut State Agencies further provides:  “In order to establish that an individual was discharged or suspended for deliberate misconduct in wilful disregard of the employer's interest, the Administrator must find all of the following:  (a) Misconduct.   To find that any act or omission is misconduct the Administrator must find that the individual committed an act or made an omission which was contrary to the employer's interest, including any act or omission which is not consistent with the standards of behavior which an employer, in the operation of his business, should reasonably be able to expect from an employee. (b) Deliberate.   To determine that misconduct is deliberate, the Administrator must find that the individual committed the act or made the omission intentionally or with reckless indifference for the probable consequences of such act or omission. (c) Wilful Disregard of the Employer's Interest.   To find that deliberate misconduct is in wilful disregard of the employer's interest, the Administrator must find that:  (1) the individual knew or should have known that such act or omission was contrary to the employer's expectation or interest;  and (2) at the time the individual committed the act or made the omission, he understood that the act or omission was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by mitigating circumstances of a compelling nature.   Such circumstances may include:  (A) events or conditions which left the individual with no reasonable alternative course of action;  or (B) an emergency situation in which a reasonable individual in the same circumstances would commit the same act or make the same omission, despite knowing it was contrary to the employer's expectation or interest.”.  FN3. Section 31–236–26a of the Regulations of Connecticut State Agencies further provides:  “In order to establish that an individual was discharged or suspended for deliberate misconduct in wilful disregard of the employer's interest, the Administrator must find all of the following:  (a) Misconduct.   To find that any act or omission is misconduct the Administrator must find that the individual committed an act or made an omission which was contrary to the employer's interest, including any act or omission which is not consistent with the standards of behavior which an employer, in the operation of his business, should reasonably be able to expect from an employee. (b) Deliberate.   To determine that misconduct is deliberate, the Administrator must find that the individual committed the act or made the omission intentionally or with reckless indifference for the probable consequences of such act or omission. (c) Wilful Disregard of the Employer's Interest.   To find that deliberate misconduct is in wilful disregard of the employer's interest, the Administrator must find that:  (1) the individual knew or should have known that such act or omission was contrary to the employer's expectation or interest;  and (2) at the time the individual committed the act or made the omission, he understood that the act or omission was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by mitigating circumstances of a compelling nature.   Such circumstances may include:  (A) events or conditions which left the individual with no reasonable alternative course of action;  or (B) an emergency situation in which a reasonable individual in the same circumstances would commit the same act or make the same omission, despite knowing it was contrary to the employer's expectation or interest.”

FN4. During the hearing, the plaintiff acknowledges that the board may rely on ordinary hearsay.   Indeed, pursuant to General Statutes § 31–244a:  “The referees and the board shall not be bound by the ordinary common law or statutory rules of evidence or procedure.   They 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.”  “[H]earsay testimony, so long as it is sufficiently trustworthy, generally is admissible in administrative hearings.”  (Citation omitted.)  Addona v. Administrator, Unemployment Compensation Act, 121 Conn.App. 355, 363, 996 A.2d 280 (2010)..  FN4. During the hearing, the plaintiff acknowledges that the board may rely on ordinary hearsay.   Indeed, pursuant to General Statutes § 31–244a:  “The referees and the board shall not be bound by the ordinary common law or statutory rules of evidence or procedure.   They 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.”  “[H]earsay testimony, so long as it is sufficiently trustworthy, generally is admissible in administrative hearings.”  (Citation omitted.)  Addona v. Administrator, Unemployment Compensation Act, 121 Conn.App. 355, 363, 996 A.2d 280 (2010).

FN5. It should be noted that the plaintiff's argument that the employer did not produce the policy manual only attacks the findings of the referee under the rule or policy violation standard.   The plaintiff is, therefore, not directly attacking the board's decision, which applied the deliberate misconduct standard..  FN5. It should be noted that the plaintiff's argument that the employer did not produce the policy manual only attacks the findings of the referee under the rule or policy violation standard.   The plaintiff is, therefore, not directly attacking the board's decision, which applied the deliberate misconduct standard.

FN6. For example, the plaintiff does not cite to any cases that discuss the specific issue of the admissibility of double hearsay.   Furthermore, most of the cases that the plaintiff cites to can be distinguished from the present case because they are decided by the board under a de novo review..  FN6. For example, the plaintiff does not cite to any cases that discuss the specific issue of the admissibility of double hearsay.   Furthermore, most of the cases that the plaintiff cites to can be distinguished from the present case because they are decided by the board under a de novo review.

FN7. In addition, the plaintiff seemingly attacks the board's finding that the plaintiff attempted to excuse his late arrival on February 3, 2010, by altering the medical note.   However, this fact is part of the record, and cannot be challenged or changed by this court..  FN7. In addition, the plaintiff seemingly attacks the board's finding that the plaintiff attempted to excuse his late arrival on February 3, 2010, by altering the medical note.   However, this fact is part of the record, and cannot be challenged or changed by this court.

Moran, John W., J.T.R.