Richard J. Gullage v. Administrator, Unemployment Compensation Act et al. (2013)

MEMORANDUM OF DECISION

I

PROCEDURAL HISTORY

This is an unemployment compensation appeal to the Superior Court by the former employee, Richard Gullage, who is appealing the September 21, 2012 decision of the Employment Security Appeals Division Board of Review (Board), in which the Board adopted and modified the Referee's finding of facts and affirmed the decision that Mr. Gullage was ineligible to receive benefits.   Mr. Gullage was discharged from his position at a bottle and can redemption center for wilful misconduct, specifically issuing fraudulent redemption slips to third parties and then receiving a portion of the proceeds.

II

DISCUSSIONA. Standard of Review

“A trial court's review of the findings of the board is circumscribed.   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 the facts nor hear evidence ․ [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.)  Lantieri v. Administrator, Unemployment Commission, 136 Conn.App. 174, 182, 43 A.3d 815 (2012).  “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.)  Manukyan v. Administrator, Unemployment Compensation Act, 139 Conn.App. 26, 34 (2012).

“[A] [plaintiff'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.”  (Internal quotation marks omitted.)  Manukyan v. Administrator, Unemployment Compensation Act, supra, 139 Conn.App. 34.   Since Mr. Gullage 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, the court cannot make a further review of those facts.  “In the absence of a motion to correct the finding of the board, the court is bound by the board's finding.”  (Internal quotation marks omitted.)   Warner v. Administrator, Unemployment Compensation Act, 135 Conn.App. 84, 89, 41 A.3d 348 (2012).   The Board's findings are binding on this court.

B. Analysis

General Statutes § 31–236(a)(2)(B) provides that an individual is ineligible for benefits if he is discharged for “wilful misconduct in the course of the individual's employment ․” “Wilful misconduct” is defined in relevant part in General Statutes § 31–236(a)(2)(B) 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 ․” General Statutes § 31–236(a)(16).   Specifically, § 31–236(a)(2)(B) provides that an employee is ineligible for benefits if he or she is discharged for conduct constituting larceny of property, the value of which is greater than $25.00.

Because the Board's findings of fact and conclusions of law are not unreasonable, arbitrary, illegal or an abuse of its discretion and Mr. Gullage did not file a motion for correction of the Board's findings, the court is bound by the facts as found by the Board.   Mr. Gullage is not eligible for benefits because he was discharged for wilful misconduct committed in the course of his employment.   See, General Statutes § 31–236(a)(2)(B).

III

CONCLUSION

For the reasons stated, the court affirms the decision of the Board and the appeal is dismissed.

James W. Abrams, Judge

Abrams, James W., J.