Audrey Wendt v. Administrator, Unemployment Compensation Act et al. (2013)

MEMORANDUM OF DECISION

This is an appeal by a former employee of Bristol Hospital from a denial of unemployment compensation benefits.   The Employment Security Board of Review (Board) has certified and filed with the court a record of proceedings pursuant to Connecticut General Statute § 31–249b.

The record reflects that the Administrator determined that the appellant was ineligible for benefits because she had been discharged from her position for wilful misconduct during the course of her employment.   The appellant then appealed to a Referee, who conducted a de novo hearing in accordance with Connecticut General Statute § 31–242.   The Referee affirmed the Administrator's finding of ineligibility.   The appellant then appealed to the Board which affirmed her decision.   The appellant then took this appeal from the decision of the Board to this court.   This court heard argument on the appeal on August 26, 2013.

“In the processing of unemployment compensation 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 claim 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.   The decision is appealable to the board of review.  General Statutes § 31–249.   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.   [General Statutes § 31–249.]   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].”  (Citations omitted;  internal quotation marks omitted.)  Fullerton v. Administrator, Unemployment Compensation Act, 280 Conn. 745, 755–57, 911 A.2d 736 (2006).”  Ray v. Administrator, Unemployment Compensation Act, 133 Conn.App. 527 (2012).

The referee found the following facts:

1.  The claimant worked for Bristol Hospital Incorporated from July 13, 2009 until November 8, 2012.   At the time of her discharge, the claimant worked as a full time Patient Care Associate earning $16.24 per hour.

2. On January 31, 2012, the employer issued a written warning to the claimant for insubordination where she raised her voice to her manager, Lantiere.   The claimant refused to look at the warning because she did not agree with it.

3. On several occasions between June 2012 and November 2012, the employer spoke with the claimant verbally about her attitude and tone of voice.   The employer indicated the claimant was not to raise her voice to Lantiere at any time.  (See administrator's exhibit # 5.)

4.  On November 6, 2012, the claimant was in the nursing station loudly complaining about the employer's decision to float one of the PCAs from her unit to another unit due to patient needs.   Lantiere heard the claimant loudly complaining and asked her to speak with her privately.   During the private discussion, the claimant raised her voice.   Lantiere told the claimant to lower her voice twice during that discussion.   The claimant was in the hallway near patient rooms and other employees.

5. On November 8, 2012, the employer discharged the claimant for arguing with Lantiere.

Based on her factual finding the referee found that Bristol Hospital discharged the claimant for wilful misconduct in the course of her employment.   As a result the claimant was found to be disqualified from receiving unemployment benefits pursuant to General Statutes Section 31–236(a)(2)(B).

The claimant filed a timely appeal to the board of review.   The board of review reviewed the entire record, including the recording of the referee's hearing, and found that the referee had adequately addressed the claimant's contentions, that the findings are supported by the record, and that the conclusion reached by the referee is consistent with those findings and the provisions of the Connecticut Unemployment Compensation Act. The board adopted the referee's findings of fact and decision, affirmed the decision, and dismissed the appeal.   The claimant then took this appeal from the decision of the board to this court.

If a party to an unemployment compensation appeal wishes to challenge a finding of the board he or she is required, pursuant to Section 22–4 of the Connecticut Practice Book, to file a timely motion to correct.   The claimant has not filed a motion to correct.  “Our Supreme Court has adopted this rule, stating that a claimant'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.’  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 422.   This court has relied on Calnan multiple times in concluding that a claimant's failure to file a timely motion to correct the board's findings pursuant to Practice Book § 22–4 was dispositive of the appeal.   See Shah v. Administrator, Unemployment Compensation Act, supra, 114 Conn.App. 175–77;  Reeder v. Administrator, Unemployment Compensation Act, 88 Conn.App. 556, 869 A.2d 1288, cert. denied, 275 Conn. 918, 883 A.2d 1245 (2005);  see also Chavez v. Administrator, Unemployment Compensation Act, 44 Conn.App. 105, 686 A.2d 1014 (1995) (motion to correct required under Calnan to challenge board's findings on appeal).”  Belica v. Administrator, Unemployment Compensation Act, 126 Conn.App. 779 (2011).   Since the claimant has not filed a motion to correct the factual findings of the board this court cannot challenge those findings.

The claimant claims that she had never been “written up” before and that she was a hard working employee.   There was evidence before the referee that the claimant had received a written warning on January 31, 2012 about raising her voice to her manager, and that between June and November 2012 her employer spoke to her on several occasions about her attitude and her tone of voice.   The final incident of such conduct occurred on November 6, 2012 which led to her termination on November 8, 2012.   The referee and the board was entitled to accept this evidence in its evaluation of the credibility of the witnesses and these findings of fact must be accepted by the court.   These and other facts found by the referee and the board fully support the conclusion that the claimant engaged in wilful misconduct.

Connecticut General Statute Section 31–236(a)(2)(B) provides that an employee who has been discharged for wilful misconduct in the course of his or her employment shall be ineligible for benefits.   The term “wilful misconduct” is defined as meaning “deliberate misconduct in wilful 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 ․” It shows a disregard of standards that an employer has a right to expect of an employee.  United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 384, 551 A.2d 724, 726 (1988).

The court finds that the board's finding that the claimant is ineligible for unemployment compensation benefits because she was discharged for wilful misconduct is not unreasonable, arbitrary or illegal and is based on the entire record.

The appeal is dismissed.

William L. Hadden, Jr.

Judge Trial Referee

Hadden, William L., J.T.R.