Felix A. Acevedo v. Administrator, Unemployment Compensation Act et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT (# 101)

This action is an administrative appeal from a July 3, 2012 decision by the department of labor board of review (board).   This appeal was filed in the Superior Court on August 10, 2012, by the plaintiff, Felix Acevedo, against the defendants, the administrator of the Unemployment Compensation Act (administrator), Bob's Discount Furniture, LLC (Bob's), and the department of labor employment security appeals division (appeals division).   A record of proceedings before the board was also filed on August 10, 2012.

On August 24, 2012, the administrator filed a motion for judgment, with an accompanying memorandum of law, on the grounds that the facts found by the board cannot be altered and that there is evidence in the record to support the board's decision.   Acevedo filed his objection and memorandum of law in opposition to the motion on October 1, 2012, on the grounds that the record does not establish that he acted with intent.   On March 14, 2013, the motion for judgment was granted by this court.   On April 3, 2013, Acevedo filed a motion for reargument, which was granted on April 23, 2013, by this court.   The court heard argument on the matter on May 28, 2013.

BACKGROUND

Following his termination, Acevedo sought unemployment benefits and was determined eligible pursuant to a ruling by the administrator, effective as of December 18, 2011.   On January 26, 2012, Bob's appealed the ruling and the appeals division scheduled a hearing for February 23, 2012. which was attended by Acevedo and Bob's. On February 24, 2012, the associate appeals referee reversed the administrator's ruling, determining that Acevedo was not eligible for benefits.   Acevedo then filed a timely appeal to the board on March 15, 2012.   The board's decision affirmed the ruling of the associate appeals referee.

The facts found by the board are as follows.   Acevedo worked for Bob's as a stocker from November 30, 2010 until he was discharged on December 20, 2011.   Bob's initiated an investigation of Acevedo following an incident on December 15, 2011, when a manager found him in the cafeteria twenty minutes after she had dismissed his shift.   Through this investigation, Bob's found that Acevedo punched out after beginning his lunch and punched in before he returned from lunch on multiple occasions.   Acevedo provided different explanations for his behavior, including being in a hurry to reach the microwave and having trouble with his fingers.   Based on these facts, the board found that Acevedo had falsified company records, that his actions constituted deliberate misconduct, and that these acts were intentional, regardless of the motivation.   Therefore, the board affirmed the decision of the associate appeals referee, denying Acevedo unemployment benefits, and dismissed the appeal.

STANDARD OF REVIEW

“We begin with the standards applicable to a court's review of decisions of the board.   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.   The court must not retry 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.”  (Internal quotation marks omitted.)  Tuxis Ohr's Fuel, Inc. v. Administrator, Unemployment Compensation Act, 309 Conn. 412, 421, (2013).¹

“Furthermore, [a] plaintiff's failure to file a timely motion [to correct] the board's findings ․ prevents further review of those facts found by the board ․ In the absence of a motion to correct the findings of the board, the court is not entitled to 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 conclusions reached.  [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses.”  (Internal quotation marks omitted.)  Mayo v. Administrator, Unemployment Compensation Act, 136 Conn.App. 298, 301, 44 A.3d 883 (2012).

DISCUSSION

The administrator argues that this appeal should be dismissed on the grounds that the factual conclusions from the board cannot be overturned because no motion to correct the record was filed, and that there is evidence in the record to support a finding that the plaintiff was discharged for wilful misconduct.   Acevedo argues that the judgment should not be granted because wilful misconduct requires intent and the record does not support the conclusion that his actions were taken with a deliberate, knowing or reckless disregard for his employer's interests.

General Statutes § 31–236(a)(2)(B) provides, in relevant part, that an individual shall be ineligible for unemployment benefits “if, in the opinion of the administrator, the individual has been discharged or suspended for ․ wilful misconduct in the course of the individual's employment ․” Wilful misconduct is defined as “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 ․” General Statutes § 31–236(a)(16).

“To find that any act or omission is misconduct, the [board] 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 ․ To determine that misconduct is deliberate, the [board] 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 ․ Finally, [t]o find that deliberate misconduct is in wilful disregard of the employer's interest, the [board] 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.”  Tosado v. Administrator, Unemployment Compensation Act, 130 Conn.App. 266, 277–78, 22 A.3d 675 (2011).

In the present case, Acevedo did not file a motion to correct the board's factual findings, thus the court cannot review those findings and must rely on the facts and evidence certified by the board.   The ultimate question is whether the board's decision that Acevedo's actions constituted deliberate misconduct was “unreasonable, arbitrary, illegal or an abuse of discretion.”   Tuxis Ohr's Fuel, Inc. v. Administrator, Unemployment Compensation Act, supra, 309 Conn. 421.   The record of proceedings filed is not disputed by the parties.   Acevedo relies on the argument that wilful misconduct includes an element of intent.²  In the July 3, 2012 decision, the board found that “falsifying company records constitutes deliberate misconduct ․ [Acevedo] knew that punching out after he began his lunch and punching in before he returned from lunch was contrary to the employer's interest ․ [His] falsification of the employer's time keeping records constituted deliberate misconduct.”   The board further found that, while Acevedo cited board precedents supporting the argument that intent is a required element, “the employer has show that [Acevedo] intentionally falsified the employer's time keeping records, regardless of his motivation.”   Acevedo admitted to falsifying the records and could not provide any mitigating circumstance of a compelling nature to justify his actions.   There was no emergency requiring him to punch out late or punch in early, and there were no events or conditions that left no reasonable alternative course of action.   The determination by the board that Acevedo intentionally falsified his time keeping records, and that he knew this was contrary to his employer's interests, is not unreasonable or arbitrary, nor is the decision illegal or an abuse of discretion.

ORDER

Based on the foregoing reasons, while the court has reconsidered its March 14, 2013 decision, the defendant's motion for judgment is granted.

Devine, J.

FOOTNOTES

FN1. General Statutes § 31–249b provides, in relevant part:  “At any time before the board's decision has become final, any party ․ may appeal such decision ․ to the superior court ․ for the judicial district wherein the appellant resides.   Any or all parties similarly situated may join in one appeal ․ In all cases, the board shall certify the record to the court.   The record shall consist of the notice of appeal to the referee and the board, the notices of hearing before them, the referee's findings of fact and decision, the findings and decision of the board, all documents admitted into evidence before the referee and the board or both and all other evidentiary material accepted by them.”.  FN1. General Statutes § 31–249b provides, in relevant part:  “At any time before the board's decision has become final, any party ․ may appeal such decision ․ to the superior court ․ for the judicial district wherein the appellant resides.   Any or all parties similarly situated may join in one appeal ․ In all cases, the board shall certify the record to the court.   The record shall consist of the notice of appeal to the referee and the board, the notices of hearing before them, the referee's findings of fact and decision, the findings and decision of the board, all documents admitted into evidence before the referee and the board or both and all other evidentiary material accepted by them.”

FN2. Acevedo also inaccurately relies on the argument that he was not warned prior to being discharged.   In their decision, the board noted that they have held that “prior warnings are not necessary to find wilful misconduct where the claimant should have known that the conduct in question was clearly detrimental to the employer's interest.”   The case relied upon by Acevedo was decided based upon an older statutory definition of wilful misconduct which included the requirement that the misconduct was “repeated.”   See Lazarcheck v. Administrator, Unemployment Compensation Act, 1 Conn.App. 591, 594, 474 A.2d 465 (1984).   That language is no longer included in the statutory definition of wilful misconduct and, as such, the determinations that relied upon that language are not relevant to this court's decision.   See General Statutes § 31–236(a)(16)..  FN2. Acevedo also inaccurately relies on the argument that he was not warned prior to being discharged.   In their decision, the board noted that they have held that “prior warnings are not necessary to find wilful misconduct where the claimant should have known that the conduct in question was clearly detrimental to the employer's interest.”   The case relied upon by Acevedo was decided based upon an older statutory definition of wilful misconduct which included the requirement that the misconduct was “repeated.”   See Lazarcheck v. Administrator, Unemployment Compensation Act, 1 Conn.App. 591, 594, 474 A.2d 465 (1984).   That language is no longer included in the statutory definition of wilful misconduct and, as such, the determinations that relied upon that language are not relevant to this court's decision.   See General Statutes § 31–236(a)(16).

Devine, James J., J.