Juan Sanchez v. Administrator, Unemployment Compensation Act (2013)

MEMORANDUM OF DECISION

I

This statutory appeal concerns unemployment compensation.   The record has been certified to the court.

At least for the court, this case presents a complicated factual scenario.   The first document in the record is entitled “Notice to Employer of Hearing and Unemployment Compensation Claim.”   It states Mr. Sanchez “has filed a claim for unemployment compensation and has named you (the employer, Norton University) as a former employer.”   As reasons for separation the following was stated “Per Employer Protest:  Claimant had potential to work 12 hours every week, but was not available to do so.   Also has unreported earnings.   Potential for overpayment exists.”   A hearing date for determining entitlement benefits was set for May 11, 2011.   An individual named Manuel Rivera acted as a hearing officer and made the following findings for the Administrator.   He held that Mr. Sanchez's claim for unemployment benefits vis-a-vis this employer was denied stating as to the claim.

“Denied—Able & Available”

The claimant was not making himself available to work the potential 12 hours per week that the employer was offering him because of the fact that the amount of money he was making was less than what he was paying in gas to drive the 45–minute commute every day.   The claimant worked for the company since 3/7/2007 to 3/9/2011.   It is therefore determined by the administrator that the claimant was not able and available for all the hours the employer was allowing for him to work.   The claimant is therefore denied within the meaning of the law.   As a result a request will be sent to Merit Rating to relieve the employer of the wages.   As a result however the claimant is overpaid $331.00 for the weeks ending 8/7/2010 through 11/20/2010 for all of the hours that the employer had available for the claimant to work but that he refused.

The claimant also had unreported earnings which he worked for the weeks ending 8/7/2010 through 9/18/2010, 10/30/2010, and 11/13/2010.   The claimant is overpaid $433.00.   The claimant has a total overpayment of $764.00.¹

Acting for the Unemployment Compensation Administrator, the Benefit Payment Control Unit, following the foregoing, issued a document entitled “Overpayment And Administrative Penalty Decision.”   It is dated September 20, 2011 and is addressed to Mr. Sanchez and is prefaced by the following:  “Based on a review of the case file and information you provided at a hearing or by mail a determination has been made that your unemployment compensation account is overpaid $6,576 and you have been assessed administrative penalty weeks.   First addressing the overpayment issue which concerns eligibility to unemployment compensation pursuant to § 31–235 CGSA the document says:

You failed to properly report your earnings from NORTON UPHOLSTERING CO. for the week(s) ending August 7, 2010 through August 28, 2010, September 11, 2010, September 18, 2010, October 2, 2010, October 16, 2010, and October 23, 2010.   In addition, you failed to report on your claims for the weeks ending August 7, 2010 through November 20, 2010 that you were not ready and willing to accept work because of personal reasons.   We, therefore, find that you were not available for work as required by law during the above weeks.   You are ineligible for benefits from August 1, 2010 until the above described reason for ineligibility no longer exists.   By virtue of the above decision, you were not entitled to the benefits that you received during the weeks ending August 1, 2010 through November 20, 2010.

The document goes on to say that pursuant to § 31–273(b) of the general statutes it was concluded “the evidence supports a finding that (Mr. Sanchez) knowingly made a false statement or representation or knowingly failed to disclose a material fact in order to obtain or increase benefits.”   Therefore a fourteen-week Administrative Penalty was to be assessed to his account.

Pursuant to this decision of the Benefits Payment Control Unit, Mr. Sanchez was advised he had 21 days to file an appeal of this decision.

Mr. Sanchez did file an appeal on September 28, 2011.   An Appeals Referee heard the claimant's (Mr. Sanchez's) appeal.   A hearing was held November 7, 2011 and a decision was issued December 9, 2011.

The administrator's decision was affirmed and the appeal by Mr. Sanchez was dismissed.   The Appeals Referee stated that:  “The claimant remains ineligible from August 1, 2010 until November 19, 2011, and remains subject to overpayment and administrative penalty weeks.

In reaching his decision the Appeals Referee made the following finding of facts:

FINDINGS OF FACT

1. The claimant started working part-time for the employer in March 2007 and he last worked for the employer on March 9, 2011, when he resigned, in part because he became unavailable for work.   The claimant, who never faced termination, was offered but declined twelve hours of work per week.

2. The claimant started a full-time position in late November 2010.

3. Upon hire the claimant lived approximately four minutes from work.   The claimant subsequently lost his apartment and relocated to Guilford, Connecticut during August 2010.   After the relocation in August 2010 the claimant was then one hour from the workplace.

4. The employer continued to offer the claimant twelve hours of work per week.   Because the position entailed significant driving both to and from work and around the state, the relocation adversely impacted the claimant's ability to work.   As a result, the claimant declined work offered to him.

5. The claimant had several issues generally preventing him from working.   The claimant had a child in day care during August 2010 through November 2010, requiring him to leave work by 3:00 p.m. The claimant had difficulty affording day care and gas, electing to remain home on some days, looking for work closer to home.

6. Due to the commute, and his day care restrictions (requiring the claimant to leave work by 3:00 p.m.) the claimant was not available to work twelve hours during August 2010, September 2010, October 2010, and November 2010.   The claimant reported to the administrator:  “The employer is stating that I had potential to work up to 12 hours every week and that I was not available to do so.   This is true for several reasons.   The first issue was that of child care ․”

7. The claimant has no physical impediments precluding him from full-time work.

8. Based on wages from Yale University and the named employer during the base period (4/1/09—3/31/10) the claimant established a weekly benefit rate of $484, filing claims during August 2010, through November 2010.

9. Based on wages reported from the named employer (paid to the claimant) for the weeks ending August 7, 2010, through November 20, 2010, the claimant was ineligible for unemployment benefits.   The claimant filed and received $6,576 in unemployment benefits over the course of the cited weeks.

10. When an individual files by voice response, the individual is required to respond to the following question.   Did you work full-time or part-time for an employer or in self-employment or return to full-time work during the week ending last Saturday which you have not already reported?   The claimant responded “no” to this question for the weeks in question.

11. The claimant received A Guide to Unemployment Benefits in Connecticut.   The referee then made the following observation on the issues before him.   He concluded two issues were presented.

Issue (1) was whether Mr. Sanchez was available for work and made reasonable efforts to find work between August 1, 2010 and November 20, 2010.   He cited § 31–235(a)(2) of the statutes and Reg. 31–235–53 and noted Mr. Sanchez has the burden of proving he was available for work and genuinely exposed to the labor market.   In rejecting Mr. Sanchez's claim as to this issue on appeal.   The referee stated:

The claimant in this case acknowledged both to the administrator and the referee that he was not fully available for full-time work during August 2010 through November 2010.   In fact, the claimant declined the option of working twelve hours per week.   The claimant reported to the administrator:  “The employer is stating that I had potential to work up to 12 hours every week and that I was not available to do so.   This is true for several reasons.   The first issue was that of child care ․” Further, the claimant testified that he contacted “at least one” potential employer per week.   As part of the administrator's standard Benefit Rights Interview, claimants generally are issued a copy of A Guide to Unemployment Benefits in Connecticut.   The Guide contains an explanation of the reasonable efforts requirements of the law, including the nature and frequency of the employer contacts a claimant must make.   It also includes an advisement to maintain a detailed record of these contacts.   Therefore, a claimant who has received the Guide has been adequately informed of his work search obligations in accordance with the regulation.   See Korbeski v. Administrator, Board Case No. 202–BR–93 (3/2/93).   The courts have repeatedly ruled that fewer than three employer contacts per week generally do not constitute reasonable efforts.   See Carr v. Administrator, 26 Conn.Sup. 336 (1966);  Velez v. Administrator, 24 Conn.Sup. 507 (1963).   The referee must confirm that the claimant was not available for full-time work.

The second issue addressed by the referee was concern of an overpayment of benefits in the amount of $6,576 and fourteen administrative penalty weeks.   The referee cited § 31–273(b)(1) and § 31–273–7(a) of the statutes stating:

The cited statutory provisions stand for the proposition that intentional efforts to deceive for the purposes of securing benefits, rise to the level of fraud.   In such cases, a claimant will be disqualified, and the Administrator may issue an overpayment sum and demand forfeiture of benefits for a designated period.   In addition, claimant's are placed on notice to report earnings via normal use of the voice response system.   The claimant in this case does not dispute that he worked and had the described earning while filing claims for the described period, August 1, 2010, through November 20, 2011.   Citing that he “failed to refresh” the system when he filed claims, the claimant has not adequately explained his failure to properly report earnings—or why he indicated that he was available for full-time work.   The claimant testified that even though he was not available for full-time work while working for the employer, he “just said he was available.”   It is the duty of the referee, as trier of fact, to determine the credibility of the testimonial and documentary evidence in the record and the relative weight of such evidence.   Baez v. City of Meriden, Board Case No. 1343–BR–91 (8/21/92).   The referee finds that the claimant remains subject to an overpayment of $6,576 and fourteen (14) administrative penalty weeks.

Section 31–273(b)(1) of the General Statutes.

As noted as a result of the foregoing observations the appeal for Mr. Sanchez was dismissed, an overpayment was found and a penalty was imposed.

On December 30, 2011 Mr. Sanchez filed an appeal of the referee's decision to the Board of Review.   The decision of the Board affirmed the referee's decision holding the referee's conclusions of law were supported by the findings of fact.   It noted that Mr. Sanchez had sought another hearing to explain his position but held Conn. Agencies Regs. § 31–237g–40 and its requirements had not been met because Mr. Sanchez “failed to show ․ that the ends of justice require the board to receive additional evidence or testimony in order to adjudicate the appeal property ․” The Board further reasoned that the notice of hearing before the referee advised Mr. Sanchez that the referee's hearing will likely be the only chance to be heard and the Board would not “retry a matter where the referee offered the party a full and fair opportunity to present its case.”   The Board further noted that Mr. Sanchez “has not indicated what evidence he would produce or why he did not offer evidence at the referee's hearing.”

II

The court will now try to review the standards that should be applied in reviewing decisions of the employment security board of review in making decisions under the Unemployment Compensation Law and some of the legal issues that arise in an appeal of this type and which are presented in this case.

(a)

First, very generally, it has been said by the court in DaSilva v. Administrator, 175 Conn. 562, 569 (1978) that “ ‘the purpose of the (unemployment compensation) act is to provide some income for the worker earning nothing because he is out of work through no fault or act of his (sic) own’ ․ Since the purpose of the act is clearly remedial in character, it is to be liberally construed in order to accomplish its humanitarian purpose ․” See also Ertman v. Fusari, 447 F.Sup. 1147, 1149 (D.Conn.1977).

But the standards to be applied by the courts in reviewing decisions of the Board of Review in Unemployment Compensation are set out in Manukyan v. Administrator, 139 Conn.App. 26, 33–35 (2012).   The court quoting from earlier opinions, said:

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 ․ 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.   (Citations omitted.)  United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 385–86, 551 A.2d 724 (1988).   “[The court] is bound by the findings of subordinate facts and reasonable factual conclusions made by the appeals referee where, as here, the board of review adopted the findings and affirmed the decision of the referee.”   DaSilva v. Administrator, Unemployment Compensation Act, 175 Conn. 562, 564, 402 A.2d 755 (1978).  “If the referee's conclusions are reasonably and logically drawn, the court cannot alter them.”  Howell v. Administrator, Unemployment Compensation Act, supra, 174 Conn. 533.

“A party'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 Practice Book § 22–9(a) provides in relevant part:  “[The court] 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.   It cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses.”

The court has also held that:  “A fact is not proven merely because a claimant testifies to it and no one denies it, for it is the province of the referee as trier of fact to determine the credibility of the witnesses and the weight of the evidence.”  Howell v. Administrator, Unemployment Compensation Act, 174 Conn. 529, 532 (1978).

On the other hand in Fullerton v. Administrator, Unemployment Compensation Commissioner, 280 Conn. 745, 760–62 (2006), the court in hearing an appeal from the actions of the Administrator in an unemployment compensation case did say, quoting from an earlier opinion:

“[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable ․ Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact ․ Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion,” also see JSF Promotions, Inc. v. Administrative, Unemployment Compensation Act, 265 Conn. 413, 417 (2003).

In other words as the court said in Finkenstein v. Administrator, 192 Conn. 104, 112 (1984):  “The Superior Court does not retry the facts or hear evidence in appeals under our unemployment compensation legislation.   Rather, it acts as an appellate court to review the record certified and filed by the board of review.”

(b)

Another matter important to resolving this case is reflected in the first issue the referee decided which was whether Mr. Sanchez was available for work.  Section 31–235 it states in relevant part, that an unemployed person is eligible for benefits only if it has been found that “such individual is physically and mentally able to work and is available for work and has been and is making reasonable efforts to obtain work ․”

In Samson v. Administrator, 29 Conn.Sup. 316 (1971), the court said “the phrase ‘available for work’ means a readiness and ability to accept ‘suitable employment,’ “ id. page 317.   A claimant, the court noted “has the burden of proving that he is ‘available for work,’ “ id.   In Stapleton v. Administrator, Unemployment, 142 Conn. 160, 164–65 (1955), the court said “to be available for work within the meaning of the statute, one must be ready, able and willing to accept suitable employment.   He must be exposed unequivocally to the labor market,” quoted in Manukyan v. Administrator, supra at 139 Conn.App., page 35.

In Dubkowski v. Administrator, 150 Conn. 278, 280 (1963), the court said:  “A claimant is not entitled to unemployment compensation when he limits his availability for work because of personal reasons unrelated to the employment,” citing Northup v. Administrator, 148 Conn. 475, 478 and in Leclerc v. Administrator, 137 Conn. 438, 439.   In Lenz v. Administrator, 17 Conn.Sup. 315 (1951), the court noted that the burden of proving availability for work is upon the claimant, id. page 317.   The court went on to decide that where the plaintiff limited her availability to work certain shifts based on home or domestic responsibilities she was not available for work, id., page 318;  she had not exposed herself “unequivocally” to the labor market.   The “home responsibilities” involved, apparently, care of a young child, id. p. 317.   Similarly in Leclerc the court noted the claimant would have turned down any daytime employment offer because she had to care for her young children.   137 Conn. p. 439.   This was the basis for its conclusion that she was not entitled to compensation because she had not made herself available for work as required by the statute.  Leclerc was last cited in the 1978 case of DaSilva v. Administrator, 175 Conn. 562, 566 so it is still the law in our state.²

(c)

In his brief the plaintiff notes that he filed a motion to correct the referee's findings with the Board of Review which it incorrectly denied.   If a motion to correct is properly filed and it is granted to the extent that the Board is persuaded incorrect findings as to the facts were made or findings were not made which should have been made, then it necessarily follows that on appeal the Superior Court would not be limited by the original findings which have been found to be wanting.

The court will try to address the fact that the plaintiff filed a motion to correct the Board's findings in this matter accompanied by a request for a transcript.   The request is in the form of a letter to the board and appears at # 101 in the Edison filings.   It seeks to correct several findings of fact by the referee in this matter.   The problem with the motion is that apart from whatever merit it might have, it was untimely.  Section 22–4 of the Practice Book is very explicit;  it is one of the sections in that part of the Practice Book setting forth the required procedure in Unemployment Compensation appeals to the Superior Court.

Section 22–4 reads as follows:

§ 22–4 Correction of Finding:  Motion to Correct Finding

If the appellant desires to have the finding of the board corrected he or she must, within two weeks after the record has been filed in the superior court, unless the time is extended for cause by the board, file with the board a motion for the correction of the finding and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for, certified by the stenographer who took it;  but if the appellant claims that substantially all the evidence is relevant and material to the corrections sought, he or she may file all of it, so certified, indicating in the motion so far as possible the portion applicable to each correction sought.   The board shall forthwith upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.

The plaintiff in this case filed a motion to correct on September 12, 2012.   The record was certified to the Superior Court on July 2, 2012.   The motion to correct was filed well beyond the two-week period after the filing of the record.   In the Board's March 29, 2012 decision and its decision denying the plaintiff's motion to reopen the plaintiff was explicitly informed that when a party files an appeal in Superior Court regarding the Board's decision and “wishes to dispute the Board's findings of fact, it (the party) has to file a motion to correct findings.   Procedures for filing such a motion are set forth in Chapter 22 of the Connecticut Practice Book.”

Horton and Knox in its commentary to Practice Book § 22–4 thoroughly set out the consequences of failing to file a timely motion to correct.   The court will in large part paraphrase that commentary which appears in Volume 1 of the Connecticut Practice Series at pp. 981–83.  Reeder v. Administrator, 88 Conn.App. 556, 558 (2005), held that “failure to file a timely motion for correction pursuant to (Practice Book § 22–4) prevents this court from reviewing the fact found by the board.   As further noted in Manukyan v. Administrator, 139 Conn.App. 26, 34 (2012):  “A party'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.”

Furthermore pro se litigants are not exempt from compliance with the provisions of Practice Book § 22–4, Tosado v. Administrator, 130 Conn.App. 266, 275 (2011), also see Shah v. Administrator, 114 Conn.App. 170, 177 (2009), where the court said it was “mindful of our policy to be solicitous of pro se litigants ․ such a policy is applicable only when it does not interfere with the rights of other parties.”   The Board has procedural rights, entrusted as it is, with ensuring the efficient operation of a system designed to protect and support people who lose their jobs and need the support of the state system of unemployment compensation.   As to this, Horton and Knox at page 982 say:  “The motion to correct is no mere technical requirement.   If it is claimed that the finding is in some way incorrect, this should first be called to the attention of the board in order that it may have an opportunity to supply the omitted facts or restate the findings in view of the claims being made in the motion.”

There was no adequate reason offered as to why a timely motion was not filed in this case by the plaintiff.   As noted he received notice of the time limits for filing a motion to correct.   In his brief he claims he acted diligently in filing a motion to correct with the Board on August 27, 2012.   But even with that, and ignoring any responsibility to had to keep up with filings in the case given the notice he was given of the time for submitting such a motion after the filing of the record, the motion to correct was not filed until September 12, 2012—more than two weeks after the August 27, 2012 date.

Appellate case law, in the court's opinion, prevents the court from considering, acting upon the motion to correct or recognizing the relief it seeks.   The court is bound by the facts found by the Board and only can determine “if the law was correctly applied to the factual findings,” Horton and Knox at page 983.³

III

The court will first try to address whether Mr. Sanchez was available for work under the applicable statute, § 31–235a(2), which is a predicate for determining if there have been an overpayment of benefits as to which the defendant can order reimbursement.  Section 31–273 of the General Statutes will also be discussed which permits a finding of overpayment if there has been a wilful misrepresentation or wilful nondisclosure regarding the receipt of wages by a document.   The statute requires that an unemployed person shall be eligible for benefits if he or she “is physically and mentally able to work and is available for work and has been making reasonable efforts to obtain work.”   Pursuant to enforcing the statutory requirement the defendant has formulated Section 31–235–22 of the regulations which in subsection (b) states “(b) The administrator shall deny benefits to an individual on the basis of the individual's failure to make reasonable efforts to obtain work only if the Administrator has determined the individual to be available for suitable work and the individual's efforts to obtain work in a given week were inadequate in terms of quantity, type of work sought, or method of work search utilized.”

(a)

The statute itself does not define “reasonable efforts to obtain work.”   The referee in his analysis, which is included in his decision, notes that claimants are generally issued a copy of Guide to Unemployment Benefits in Connecticut “including the nature and frequency of the employer contacts a claimant must make.”   The referee cited two cases for the proposition that fewer than three contacts per week do not constitute reasonable efforts, Carr v. Administrator, 26 Conn.Sup. 336 (1966), and Velez v. Administrator, 24 Conn.Sup. 507 (1963).

The Guide was not made part of the record.   Counsel for the defendant at argument represented the Guide as it appears on the internet indicates at least three contacts must be made per each week benefits are claimed.   The plaintiff did not contest these representations.   Perhaps more to the point in Carr v. Administrator, supra, the court noted in that case that the unemployment compensation commissioner concluded the claimant had not made reasonable efforts to find work.   He based his decision on the fact that she only made one or two job searches per week.   Courts are bound by the commissioner's findings of subordinate facts and reasonable conclusions.   The court went on to say “Although there may be an honest disagreement as to whether one or two visits (job contacts) a week constitute reasonable efforts in looking for work under our statute, it cannot be said that the commissioner acted unreasonably, arbitrarily, illegally, or with improper motive,” id. page 337.

The agency has apparently consistently required a claimant to make three job contacts a week while he or she is unemployed.   In State Medical Society v. Board of Education, 208 Conn. 709, 719 (1988), the court said “We have accorded deference to such a time-tested agency interpretation of a statute but only when the agency has consistently followed its construction over a long period of time, the statutory language is ambiguous, and the agency's interpretation is reasonable.”

In this case the court has reviewed the exhibits submitted by the plaintiff to the referee, they include a time line and a computer printout of job contacts which correspond to the time line.   They cover the benefit period in question from August 7, 2010 through November 20, 2010.   In August 2010 there were only five job contacts by the plaintiff.   One of the weeks had no contacts at all and no contacts occurred between August 5th and August 11th.   September 2010 only had five job contacts, there were no contacts from September 1st through September 8th.   October 2010 has at least six contacts with perhaps two more although it is hard to decipher.   November 2010 up until November 20, 2010 has five contacts.   There were no contacts noted between November 5, 2010 and November 10, 2010.

Interestingly enough the foregoing analysis of job contacts based on the plaintiff's own submissions to the referee corresponds fairly accurately with his statement to the Administrator at the first hearing that he had one job contact per week.

Even apart from the three contacts a week proscription, the court cannot conclude, based on these limited contacts to obtain work that the referee's decision, approved by the Board was arbitrary, unreasonable, illegal, or illogical.   Therefore, the court is bound by the referee's findings of fact and the conclusion deduced from those findings that the plaintiff received unemployment compensation from August 7, 2010 to November 20, 2010 to which he was not entitled because he did not make himself available for work so as to fully try to engage himself in the job market.

And, even recognizing that there may be circumstances pointed out by a plaintiff such as Mr. Sanchez, where the three contact a week rule would be an unreasonable standard to apply in an individual case to support a finding of availability to work, this is not such a case.   It is true that the plaintiff had specialized skills which may not present the same number of opportunities which would be open, for example, to a blue collar worker willing and able to work in a variety of settings.   But the plaintiff is a well educated, highly intelligent individual with skills which could be exercised in a variety of work places and this was true in August through November of 2010.   His exhibits to the referee and available to the Board on review of the referee's decision indicate that in the period in question he applied for jobs as an interpreter, social services employee, a job for a health career company, a medical interpreter's job, a job at United Aluminum, and a job at Yale University Pediatrics.   On November 23, 2010 or shortly before he again applied to Yale for a job as a research assistant.   It is obvious, to the court at least, that this highly intelligent, well-educated individual had job skills that would appeal to a wide gamut of employers as he himself recognized in the submission he made.

It is true that Section 31–236–8 of the Connecticut Regulations states that:  “The Administrator shall consider an individual's prior training, experience and skills in determining the suitability of work offered.   The Administrator shall afford an individual a reasonable period of time within which to obtain employment at his highest wage and skill level.”   But “suitable work” under the regulation Section 31–236–3 means ․ “work in an individual's usual occupation or work for which he is reasonably fitted.”   But as the court said in Leclerc v. Administrator, 137 Conn. 438, 440 (1951);  referring to the Unemployment Compensation Act, “The Act was never intended to guarantee anyone a job identical in kind and hours with that which he had previously held.”   In any event, as discussed above, the limited job contacts the plaintiff did make indicates there were a variety of job situations which were suitable to and would have matched his skills.

(b)

But the plaintiff's failure to establish availability for work is based on more than the fact that he just applied for one potential employer per week.   At one point the plaintiff, as noted in finding 6, stated to the administrator:  “The employer (Norton Upholstery) is stating that I had potential to work 12 hours every week.   This is true for several reasons.   The first issue was that of child care ․” In finding 5 the claimant is said to have stated he had several issues preventing him from working.  “The claimant had a child in day care during the August 2010 through November 2010, requiring him to leave work by 3:00 p.m.” These facts having been found by the referee and adopted by the board, also establish that the plaintiff was not available for employment in the period in question thus not entitling him to unemployment benefits.⁴

(c)

Another finding must be mentioned which supports the conclusion that there was an overpayment of benefits which pursuant to the statute supported an order that the overpaid sums be repaid and had a bearing on whether the plaintiff's position that he was available to work during the period in question was credible.

The plaintiff admitted in a statement made to the administrator that he did work for Norton Upholstery during the weeks ending 8/7/10 through 9/18/2010, 10/30/2010, and 11/13/2010.   And the administrator found the plaintiff failed to report earnings for the weeks ending August 7 through August 28, 2010, September 11, 2010, September 18, 2010, October 2, 2010, October 16, 2010 and October 23, 2010.   The referee noted these findings by the administrator and in his own findings of fact at paragraph 10 said:  “10.   When an individual files by voice response, the individual is required to respond to the following question.   Did you work full time or part time or in self-employment or return to full time work during the week ending last Saturday which you have not already reported?   The claimant (Mr. Sanchez) responded ‘no’ to this question, for the weeks in question.”

The plaintiff in his statement to the administrator said in fact he did report these wages “but unfortunately don't have any way of showing or proving that I did.”   The administrator and the referee by referencing the administrator's decision and even through paragraph 10 of his own findings of fact, in effect, concluded that pursuant to § 31–273 of the General Statutes the plaintiff willfully, that is intentionally, failed to report these wages, which apart from the issue of availability for full-time work allows a finding of overpayment as to the amounts received by the plaintiff in terms of unemployment compensation for the periods of August 7 through November 20, 2010.   The theory being if he in fact worked some of these weeks during the period in question why could he have not worked for all of these weeks despite the increased cost of gas etc. brought about by his moving to a residence farther away from Norton Upholstery which the referee's findings also reflected.   And perhaps more to the point his failure to report these wages allowed him to receive full benefits he was not entitled to all of which had a bearing on the plaintiff's credibility as to the issues presented by the case.

(d)

The foregoing discussion in subsections (a), (b) and (c) requires the court to find that the Board was not unreasonable in ordering pursuant to § 31–273(b)(1) in finding an overpayment of benefits which had to be repaid.   In other words the plaintiff received benefits he knew or should have known required that he unequivocally expose himself to the job market which he did not.   It also found he was not available even for part-time work due to child care responsibilities which were only revealed to the administrator after receipt of the benefits.   The final finding is that he did not report part-time wages he actually received during the subject August 7 through November 20, 2010 subject period—which at least bore on credibility as to his assertions of availability.

The referee and Board was therefore entitled, pursuant to the language of subsection (b)(2) of § 31–273, to find that the overpayments he thereby received were the result of “wilful misrepresentation” or “wilful nondisclosure” of information necessary to the fair operation of the unemployment compensation system.   Webster's Third International Dictionary defines “wilful” as “(2) done deliberately, not accidental, or without purpose.   The Random House Dictionary defines “wilful” as “1. Deliberate, voluntary, or intentional.”

In light of the foregoing the court is constrained to rule that the Board correctly decided the plaintiff received an overpayment of $6,576 in benefits which he had an obligation to repay.

IV

Based on the foregoing the court finds that under subsection (b)(2) of § 31–273, wilful conduct having been established, the 14–week penalty period was justified.⁵

Frankly, in the court's opinion the plaintiff, who appeared to be an intelligent responsible person found himself enmeshed in the operations of an unemployment compensation system that does not allow the reception of benefits when job unavailability is based on domestic concerns and/or obligations.   Some states, as indicated, take a different view.   But the court must follow what it takes to be the applicable procedural and substantive law in deciding one of these appeals.

The court is therefore constrained to dismiss the plaintiff's appeal.

Thomas J. Corradino

Judge Trial Referee

FOOTNOTES

FN1. (1)In the document the employer filed, the following statement was made by the employer's representative.“Juan has not been officially terminated.   He requested to not work at this time due to his pursuing school and/or other employment opportunities.   If he ever wants to work here again, we will keep him on active payroll and give him hours at his request.”(2)A claimant statement is provided for;  apparently one was made by Mr. Sanchez by use of an authorized phone procedure.   Mr. Sanchez states:The purpose of this hearing is to discuss an employer protest.   The employer is stating that I had potential to work up to 12 hours every week and that I was not available to do so.   This is true for several reasons.   The first issue was that of child care;  at the time that I was filing for benefits I was not able to afford day care so a lot of the times I had to stay home with the child.   The other issue was that the job was located about 45 minutes from my home address which made it difficult for me to be available for work.   The money I was spending on gas was not allowing me to break even.   So with that said I could not take advantage of the hours being offered to me so I spent a lot of my time seeking full-time work closer to home.   I did eventually advise the employer that I no longer wanted to work with them at that time due to the fact that I wanted to pursue either school or other job opportunities.   I voluntarily left on 3/9/2011.I am able and available for full-time work and I have been working full-time since late November of 2010.   During the time that I was collecting I was seeking full-time work.   I had a driver's license and a car of my own to get me to and from work and to look for work.   I had no issue with driving 45 minutes so long as the job was for full-time work and the income being made superseded that I was spending in gas.   The minimum hourly rate that I was willing to accept is $15.00 per hour.   I had no health restrictions.   I was not in school.   I am not an officer of a corporation neither am I self employed.   Since being fully employed I am now able to afford child care so that I may be able to work full-time as I currently am.I did work for Norton Upholstering Co during the weeks ending 8/7/2010 through 9/18/2010, and 10/30/2010 and 11/13/2010.   I did report my wages every week through the internet but I unfortunately don't have any way of showing or proving that I did this to substantiate my stance.   I in no way was trying to cheat the system.   There is a possibility that during the weeks that I did report earnings that I was off a week.   I do understand that there is an overpayment of $433.00..  FN1. (1)In the document the employer filed, the following statement was made by the employer's representative.“Juan has not been officially terminated.   He requested to not work at this time due to his pursuing school and/or other employment opportunities.   If he ever wants to work here again, we will keep him on active payroll and give him hours at his request.”(2)A claimant statement is provided for;  apparently one was made by Mr. Sanchez by use of an authorized phone procedure.   Mr. Sanchez states:The purpose of this hearing is to discuss an employer protest.   The employer is stating that I had potential to work up to 12 hours every week and that I was not available to do so.   This is true for several reasons.   The first issue was that of child care;  at the time that I was filing for benefits I was not able to afford day care so a lot of the times I had to stay home with the child.   The other issue was that the job was located about 45 minutes from my home address which made it difficult for me to be available for work.   The money I was spending on gas was not allowing me to break even.   So with that said I could not take advantage of the hours being offered to me so I spent a lot of my time seeking full-time work closer to home.   I did eventually advise the employer that I no longer wanted to work with them at that time due to the fact that I wanted to pursue either school or other job opportunities.   I voluntarily left on 3/9/2011.I am able and available for full-time work and I have been working full-time since late November of 2010.   During the time that I was collecting I was seeking full-time work.   I had a driver's license and a car of my own to get me to and from work and to look for work.   I had no issue with driving 45 minutes so long as the job was for full-time work and the income being made superseded that I was spending in gas.   The minimum hourly rate that I was willing to accept is $15.00 per hour.   I had no health restrictions.   I was not in school.   I am not an officer of a corporation neither am I self employed.   Since being fully employed I am now able to afford child care so that I may be able to work full-time as I currently am.I did work for Norton Upholstering Co during the weeks ending 8/7/2010 through 9/18/2010, and 10/30/2010 and 11/13/2010.   I did report my wages every week through the internet but I unfortunately don't have any way of showing or proving that I did this to substantiate my stance.   I in no way was trying to cheat the system.   There is a possibility that during the weeks that I did report earnings that I was off a week.   I do understand that there is an overpayment of $433.00.

FN2. Some states have a different view in interpreting their Unemployment Compensation Law, see 76 Am.Jur.2d, “Unemployment Compensation” at Section 150, see Hacker v. Review Board of Indiana Employment Security Division, 271 N.E.2d 191 (Ind. Appellate Court, 1971).   In Hacker the claimant limited her availability to night shift work because she had four children at home to care for and could not obtain a babysitter.   She made several phone calls to secure employment.   The court reversed the decision of the Review Board of the Employment Security Division denying benefits for the three-month period, citing Tung–Sol Electric v. Board of Review, (N.J.Sup.;   1955) 114 A.2d 285, 289..  FN2. Some states have a different view in interpreting their Unemployment Compensation Law, see 76 Am.Jur.2d, “Unemployment Compensation” at Section 150, see Hacker v. Review Board of Indiana Employment Security Division, 271 N.E.2d 191 (Ind. Appellate Court, 1971).   In Hacker the claimant limited her availability to night shift work because she had four children at home to care for and could not obtain a babysitter.   She made several phone calls to secure employment.   The court reversed the decision of the Review Board of the Employment Security Division denying benefits for the three-month period, citing Tung–Sol Electric v. Board of Review, (N.J.Sup.;   1955) 114 A.2d 285, 289.

FN3. The court would add that this pro se litigant, from his court filings and arguments before the court as well as his filings at all levels of the unemployment compensation proceedings, showed himself to be a highly intelligent and well prepared litigant, very from a stereotype of a pro se litigant struggling to determine the appropriate law and agency and court procedures..  FN3. The court would add that this pro se litigant, from his court filings and arguments before the court as well as his filings at all levels of the unemployment compensation proceedings, showed himself to be a highly intelligent and well prepared litigant, very from a stereotype of a pro se litigant struggling to determine the appropriate law and agency and court procedures.

FN4. The court has cited several decisions to the effect that a claimant is not entitled to unemployment benefits “when he limits his availability for work because of personal reasons unrelated to the employment.”   Dubkowski v. Administrator, supra at 150 Conn. page 280, also see Leclerc v. Administrator, supra, 137 Conn. at page 439, care of young children does not overcome availability requirement.   Since the plaintiff represented child care concerns prevented him from taking part-time work offered him, how can he be said to be available for full-time work as the referee citing the administrator's findings also concluded..  FN4. The court has cited several decisions to the effect that a claimant is not entitled to unemployment benefits “when he limits his availability for work because of personal reasons unrelated to the employment.”   Dubkowski v. Administrator, supra at 150 Conn. page 280, also see Leclerc v. Administrator, supra, 137 Conn. at page 439, care of young children does not overcome availability requirement.   Since the plaintiff represented child care concerns prevented him from taking part-time work offered him, how can he be said to be available for full-time work as the referee citing the administrator's findings also concluded.

FN5. Fourteen weeks as a multiple of the benefits the plaintiff received on a weekly basis very roughly corresponds to the $6,576 figure for overpayment..  FN5. Fourteen weeks as a multiple of the benefits the plaintiff received on a weekly basis very roughly corresponds to the $6,576 figure for overpayment.

Corradino, Thomas J., J.T.R.