Kazimierz Rybak v. Administrator, Unemployment Compensation Act et al. (2013)

MEMORANDUM OF DECISION

This is an appeal by Kazimierz S. Rybak (claimant), a former employee of the Employment Security Division, Department of Labor, State of Connecticut (employer), 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 Statutes Section 31–249b.

The record reveals that the administrator denied the claimant's application for benefits and that the claimant appealed that decision to the appeal referee.   The referee conducted a hearing de novo, made findings of fact and reversed the decision of the administrator.   The employer appealed that decision to the board of review which adopted most of the referee's findings of fact with modifications and reversed the referee's decision.   The claimant then appealed that decision to this court, which heard oral 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 board is not bound by the referee's conclusions and can make its own determination of the facts and the law.   In addition to adopting the referee's finding of facts as set forth in paragraph 1–30 of the decision by the referee, with some modifications by the board, the board also summarized its own findings as follows:

“In the case before us, the claimant worked for the employer from December 16, 1991, until April 9, 2012, when the employer discharged him.   In his last position as a customer service representative at the employer's Hamden Call Center, the claimant was responsible for handling telephone inquiries and resolving matters relating to individuals' claims for unemployment compensation benefits.   The claimant used the employer's computer in the performance of his duties.   The claimant needed to enter his employee identification number and a password that he selected to access the employer's computer system, which is known as the “Central Office Payment System” or “COPS.” The claimant never disclosed his password to anyone.   The employer authorizes its customer service representatives to enter a computer command to stop payment on an individual's claim for unemployment compensation benefits when there is an issue as to the individual's eligibility.   The employer expects the customer service representative to record his or her actions in the computer file of any individual who files a claim for unemployment compensation benefits.   The employer's computer system turns off automatically after ten minutes of non-use, in which case the customer service representative must reenter his or her employee identification number and password to regain access to COPS.

“On January 31, 2012, an individual complained about the employer's delay in paying his unemployment compensation benefits.   The employer investigated the matter and discovered that someone entered a stop payment command without noting a reason for doing so in the individual's electronic records.   The employer also discovered that the same individual complained about the manner in which a customer service representative spoke to him in a telephone conversation on January 25, 2012.   After an extensive investigation, which included conducting a Loudermill hearing, the employer concluded that the claimant manipulated COPS to stop payment on this particular individual's claims for unemployment compensation benefits.

“The employer based its conclusion on computer forensic data which showed that someone entered the stop payment command utilizing the claimant's employee identification number and password.   The claimant rejected the employer's offer of a last chance agreement pursuant to which the employer would have suspended him instead of discharging him.   As a result, the employer discharged the claimant for violating its policies.   The claimant received the employer's employee handbook.   The handbook contains the employer's policies, including its prohibition against “intentionally manipulating” COPS.

“In the case before us, we find that the claimant stopped payment on the individual's claim for unemployment compensation benefits in the absence of a genuine eligibility issue.   We find it highly improbable that someone else could have performed this transaction on the claimant's computer while he was away from the computer for ten minutes.   The most plausible explanation for this incident to have occurred under the claimant's employee identification number and password is that the claimant intentionally entered this transaction.   We find that the motive for the claimant's conduct was the difficult conversation he had with the individual on January 25, 2012.   We thus conclude that the employer discharged the claimant for deliberate misconduct in the course of his employment.”

The facts that were found by the board, as set forth above, clearly support the conclusion by the board that the claimant engaged in wilful misconduct.   The position of the claimant is that he did not engage in the conduct as found by the board.   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 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, and they 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 he 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.