Frank A. Costello v. Administrator, Unemployment Compensation Act et al. (2013)

MEMORANDUM OF DECISION

This is an appeal by the claimant (appellant) from the decision of the Board of Review upholding the trial referee's denial of unemployment benefits based on wilful misconduct.

The appellant, Frank A. Costello, was employed by Securitas Security Services USA, Inc. as a security officer from October 22, 2004 to February 19, 2013.   On March 14, 2013, the administrator found the following facts.   The appellant was discharged from his position as a guard at Ridgebury Elementary School for violation of post orders.   In particular, the appellant allowed non-authorized individuals to access the school's computer system and security scanner to sign themselves in.   Although the appellant admits to allowing non-authorized individuals to access the security scanner, he argues that he did so because he never received proper computer training.   The employer provided the following evidence which was considered by the administrator:  (1) a complete history of the appellant's employment records, including examples of where the claimant failed to follow orders when dealing with clients;  (2) copies of written counseling sessions provided in response to appellant's insubordination to management and failure to properly follow orders;  (3) copies of e-mail communications in which the appellant outlined his dislike of the policies and systems that were implemented by Ridgebury Elementary;  and (4) written guidelines the appellant was required to follow in the course of his duties at the school, including instructions on the use of the computer equipment.   The administrator found that the appellant received a final written warning on January 24, 2012 for insubordination in violation of page 95, section 4, of the employer's policy.   The administrator further found that the appellant was removed from multiple sites to which he was assigned due to inappropriate behavior.   Consequently, the administrator concluded that the appellant is not entitled to benefits because he deliberately and wilfully failed to follow the employer's procedures.

On March 18, 2013, the appellant filed a timely appeal from the administrator's decision.   A hearing was held on April 8, 2013, at which the appellant appeared;  also appearing on behalf of the employer were its branch manager, its human resources manager, and an agent from TALX. On April 9, 2013, the referee found that the appellant was discharged for a knowing violation of his employer's rule in the course of his employment The referee further found that the appellant failed to provide evidence of any mitigating factors that motivated his knowing violation of that particular workplace rule.   Furthermore, the referee rejected the appellant's contention that his act of allowing non-employees to access the company computer had no adverse effect on his employer, especially in light of the fact that any non-employee on the computer can gain access to confidential information regarding the other non-employees visiting the school.   Accordingly, the referee found that, because the appellant attended a computer training where he received both verbal and written information communicating the fact that non-employees were not to be given access to the computer, the appellant knowingly engaged in conduct that was adverse to the employer's interest.   The referee therefore affirmed the administrator's findings and found that, pursuant to General Statutes § 31–236(a)(2)(B), the appellant is disqualified from receiving unemployment compensation benefits.

The appellant then filed, on April 11, 2013, a motion to reopen the referee's decision on the grounds that he would like to enter into evidence the computer training agenda syllabus in order to reargue his case.   On April 15, 2013, finding that the syllabus the appellant proposed to offer into evidence was not newly discoverable and could have been presented at the hearing before the referee, the appeals referee denied the appellant's motion to reopen.

The appellant filed a timely appeal to the Board of Review on April 22, 2013.   In his appeal, the appellant contends, among other things, that the referee failed to consider his prior job performances in finding that the employer's policy was reasonably applied in discharging him.   On August 2, 2013, the Board issued a decision affirming the referee's decision.   The Board found that, in denying the motion to reopen, the referee was correct in finding that the evidence the appellant sought to introduce was discoverable and could have been produced at the April 8, 2013 hearing before the referee.   The Board further found that, despite the appellant's contention to the contrary, the information provided to the appellant prior to his hearing before the referee sufficiently informed the appellant of his right to be represented by an attorney or another representative of his choice.   In addition, the Board, upon reviewing the recording of the hearing before the referee, reached the conclusion that there was no evidence to suggest that the appellant had any difficulty effectively presenting his case, especially as the referee properly aided the appellant in presenting his case.   The Board further found that, due to the appellant's previous written warnings for unsatisfactory work performance, the employer reasonably applied its policy in discharging the appellant, especially in light of the fact that a crowd of people is not a compelling enough reason to allow an unauthorized individual's access to the employer's security system.   The Board therefore concluded that the referee properly found that the appellant is disqualified from receiving unemployment compensation benefits.   In reaching its decision, the Board adopted the referee's findings of fact and added an additional finding of fact outlining each instance of disciplinary employment action the appellant received prior to his final discharge.

The issue on appeal is whether the Board, in affirming the referee's decision, correctly determined that the appellant was discharged for wilful misconduct in the course of employment.

“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.)  Warner v. Administrator, Unemployment Compensation Act, 135 Conn.App. 84, 88–89, 41 A.3d 348 (2012).   “In the absence of a motion to correct the finding of the board, the court is bound by the board's finding.”  Ray v. Administrator, Unemployment Compensation Act, 133 Conn.App. 527, 533, 36 A.3d 269 (2012);  see also Practice Book § 22–4.

In regard to the issue of whether the appellant's actions constitute wilful misconduct, “General Statutes § 31–236 provides in relevant part:  (a) An individual shall be ineligible for benefits ․ (2) ․ (B) 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 ․” (Internal quotation marks omitted.)  Chicatell v. Administrator, Unemployment Compensation Act, 145 Conn.App. 143, 150 (2013).  “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 ․” (Internal quotation marks omitted.)  Id.;  see also General Statutes § 31–236(a)(16).

“To establish that an individual was discharged for deliberate misconduct in wilful disregard of the employer's interest, the board must find that the individual's act or omission constituted misconduct and that such misconduct was done deliberately and in wilful disregard of the employer's interests.   Regs., Conn. State Agencies § 31–236–26a ․ 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.  Regs., Conn. State Agencies § 31–236–26a(b).”  (Citation omitted;  internal quotation marks omitted.)  Tosado v. Administrator, Unemployment Compensation Act, 130 Conn.App. 266, 276, 22 A.3d 675 (2011).   Pursuant to § 31–236–26a(c), “[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.”

In the present case, the issue before this court is whether the Board, in affirming the referee's decision, correctly determined that the appellant engaged in wilful misconduct, thus disqualifying him from receiving unemployment compensation benefits.   At the hearing before the Board, the appellant argued that the referee failed to consider his prior job performance in reaching the conclusion that the employer reasonably applied its policy in discharging him.   The appellant's contention is, however, contrary to the evidence submitted by the employer which indicates that the appellant had received three prior written warnings for unsatisfactory job performance.   In addition, the record indicates that the appellant claimant was advised by his employer that non-employees were not permitted to access the computer security system;  in addition, the fact that the appellant was provided with a private computer log-in access indicates that the appellant should have known that those without log-in privileges are not to access the computers.   Therefore, in allowing non-employees to access the computer security system, the appellant acted in deliberate disregard of the employer's interest in protecting confidential information.   Furthermore, although the appellant argues that he only allowed non-employees access because he was forced to use a new computer system to process a crowd of people, the certified records indicate that it was part of his job description to use the computer system and process all the individuals entering into the school;  thus, these circumstances do not constitute mitigating circumstances under § 31–236–26a(c) of the Regulations of Connecticut State Agencies.

The appeal is dismissed.

William J. Lavery, Judge Trial Referee

Lavery, William J., J.T.R.