Stan B. Dorozko v. Administrator, Unemployment Compensation Act et al. (2013)

MEMORANDUM OF DECISION

This unemployment compensation appeal to the Superior Court is brought by the employee, Stan B. Dorozko, from a June 19, 2013, decision of the employment security appeals division board of review (the board).

On February 21, 2013, the defendant administrator of the unemployment compensations act (the administrator) found Dorozko eligible for unemployment benefits from his employer, Black Horse Carriers, Inc. (the employer).   The employer had discharged Dorozko from its employment for falsifying the driver's log which rose to the level of misconduct in the course of his employment.   The administrator found that Dorozko was not discharged for wilful misconduct.

The employer appealed the decision to the next level, and the employment security appeals referee (the referee), after conducting a hearing de novo, made findings of fact and reversed the administrator's decision on April 9, 2013.   The referee found that Dorozko had been terminated from work for falsifying his driver's log which constituted deliberate misconduct in the course of his employment.   Dorozko was found to be ineligible from receiving unemployment compensation benefits under General Statutes § 31–236(a)(2)(B).

Dorozko appealed the referee's decision to the board, and on June 19, 2013, the board adopted the referee's findings of fact, affirmed the referee's decision and dismissed the appeal.   Dorozko filed a timely appeal of the decision to this court.   The board certified the record pursuant to General Statutes § 31–249b and Section 31–237g–51 of the Connecticut State Agencies Regulations.   The administrator has filed a motion for judgment requesting the court to dismiss Dorozko's appeal and affirm the board's decision.

STANDARD OF REVIEW

Under General Statutes § 31–249b, the court does not undertake de novo review for unemployment compensation appeals from the Employment Security Board of Review and is bound by those facts found, and reasonable conclusions reached from them.   The court may go no further than to determine whether the decision appealed is unreasonable, arbitrary or illegal.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417–18, 828 A.2d 609 (2003);  Burnham v. Administrator, 184 Conn. 317, 321–22, 439 A.2d 1008 (1981).

In the absence of a motion to correct the findings of the board, this 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.”  Practice Book § 22–9.

“Practice Book § 22–4 provides the mechanism for the correction of the board's findings.   If the [claimant] desires that the findings be corrected, the [claimant] 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.”   (Internal quotation marks omitted.)  Belica v. Administrator, Unemployment Compensation Act, 126 Conn.App. 779, 786 (2011).  “[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.”  Id.

Here the board adopted the factual findings of the referee with regard to the reason for Dorozko's discharge from employment.   Since he did not file a motion to correct with the board within two weeks of the filing of the record with the court, as required by Practice Book § 22–4, which prevents further review of those facts, the board's findings are binding on this court.   Therefore, the court reviews the decision only to determine if the board's decision was unreasonable, arbitrary, or illegal.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 417–18.

ANALYSIS

General Statutes § 31–236(a)(2)(B), provides that an individual is ineligible for benefits if the individual has been discharged or suspended for wilful misconduct in the course of the individual's employment.   Wilful misconduct is defined in § 31–236(a)(16) 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 and provided further, in the case of absence from work, ‘wilful 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.

Pursuant to Reg. Conn. Agencies, D.O.L., § 31–236–26a(a)(1997), deliberate misconduct requires commission of an act or omission that 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.   Pursuant to 31–236a(c), deliberate misconduct in wilful disregard of the employer's interest is established where the individual knew or should have known that such an act was contrary to the employer's interest or expectation and, at the time the act took place, he understood it was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by circumstances of a compelling nature.   Such mitigating circumstances include events or conditions which left the individual no reasonable alternative course of action or an emergency situation where a reasonable individual in the same circumstances would commit the same act, despite knowing it was contrary to the employer's expectation or interest.

Furthermore, an act of dishonesty which adversely affects the employer's interests or violates the standards of behavior that an employer can reasonably expect from an employee constitutes wilful misconduct.   A deliberate attempt to cover up an error is wilful misconduct in violation of standards of behavior an employer can reasonably expect of an employee, regardless of whether the error itself may have been inadvertent.

The referee and the board found the following facts.   Dorozko worked for the employer as a truck driver from September 30, 2012, until November 13, 2012, when he was discharged on November 13, 2012.   Dorozko was discharged for falsifying the driver's log, which he admits, but believed that the employer wanted him to do.   Because Dorozko knew that the Department of Transportation required him to be off duty ten out of twenty-four hours, he falsified his log so that it would appear as if he did not work in excess of fourteen hours.   He contends that the employer expected him to make the log legal and appear as if he went off duty.   The referee made a finding, which the board affirmed, that Dorozko knew his employer wanted him to go off duty and stay in a hotel, for which he would have been reimbursed.   Further, the referee and the board made credibility determinations in favor of the employer, which are not reviewable on appeal by this court.  Practice Book § 22–9(a).   The referee found that Dorozko committed a deliberate attempt to falsify the driver's log, which constituted an act of dishonesty, and therefore, wilful misconduct.

The conduct of the employee that resulted in his termination, as found by the appeals referee and as affirmed by the board of review, constitutes wilful misconduct in the course of his employment, and, therefore, pursuant to General Statutes § 31–236(a)(2)(B), Dorozko is ineligible for benefits.   The court finds that the board's decision was justified in the conclusion it reached.

CONCLUSION

The appeal is dismissed.

Swienton, J.

Swienton, Cynthia K., J.