Joseph Delucia v. Administrator, Unemployment Compensation Act et al. (2013)

MEMORANDUM OF DECISION

PROCEDURAL HISTORY

On January 17, 2013, the plaintiff, Joseph Delucia, discharged his employee, Michele Contreras.   Contreras subsequently filed for unemployment compensation benefits.   Her employer, Delucia, contested the award of benefits, claiming Contreras committed wilful misconduct in the course of employment.

The administrator found in favor of Contreras, granting her unemployment compensation benefits.   Delucia appealed the administrator's decision.   The appeals referee initially dismissed the appeal when Delucia failed to attend the hearing, but subsequently granted Delucia's motion to open the decision.   After conducting a hearing de novo, the referee made findings of fact and affirmed the decision of the administrator.

Delucia appealed the decision of the referee to the board of review, which conducted a de novo review of the record.   The board adopted the referee's findings of fact and affirmed his decision.   Delucia did not file a motion to correct findings with the board pursuant to Practice Book § 22–4.

Delucia appealed the decision of the board to the superior court, pursuant to General Statutes § 31–249b.   The court accepted the matter on the papers on November 29, 2013.   The court has reviewed the record (100.31), Delucia's brief (102.00) and a memorandum of law in opposition to the appeal (103.00) filed by the defendant, Administrator, Unemployment Compensation Act [administrator].

STANDARD OF REVIEW

Under General Statutes § 31–249b, the Superior Court does not undertake de novo review for unemployment compensation appeals from the Employment Security Board of Review.   Rather, based upon the record submitted by the parties, the court must determine whether the board could reasonably arrive at the factual findings and the conclusions of law that form the basis of this appeal.   See Finklestein v. Administrator, 192 Conn. 104, 112–13, 470 A.2d 1196 (1984).

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.”  Conn. Practice Book § 22–9.   In such a case, the superior court reviews that decision only to determine if the board's decision was unreasonable, arbitrary, or illegal.  Guevara v. Administrator, 172 Conn. 492, 495–96, 374 A.2d 1101 (1977).

ANALYSIS

I. Acceptance of Findings of Fact

The administrator argues, inter alia, that the board of review's findings are binding upon the court because Delucia did not file a motion to correct the findings with the board of review.   The administrator is correct.

Practice Book § 22–4 states, in relevant part, “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, file with the board a motion for the correction of the finding ․”(Emphasis added.)   In this matter, Delucia did not file a motion to correct findings with the board of review.   It is noted that the record reflects that Delucia, a self-represented party, received minimal instruction from the board with its decision to file such a motion if the facts were disputed.   Record, p. 64.¹

In Shah v Administrator, Unemployment Compensation Act et al., 114 Conn.App. 170, 968 A.2d 971 (2009), the plaintiff failed to file a motion for correction with the board of review as required by P.B. § 22–4.   Rather, she filed a motion with the court to open the decision of the board.   The trial court found that, in so doing, the plaintiff complied with the requirement of P.B. § 22–4.   The Appellate Court disagreed.   Citing the Appellate Court case of Calnan v. Administrator, Unemployment Compensation Act, 43 Conn.App. 779, 785, 686 A.2d 134 (1996), the court in Shah stated that, absent the prerequisite filing of a motion for correction with the board of review, the plaintiff cannot challenge the board's findings on appeal.  Shah, 114 Conn.App. at 175.   The court further cited the Supreme Court case of JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422, 828 A.2d 609 (2003) for the holding that the plaintiff's failure to file a timely motion to correct the board's findings in accordance with P.B. § 22–4 prevents further review of those facts found by the board.  Shah, 114 Conn.App. at 176.

Delucia contests the findings of fact in his brief.   However, he has not complied with P.B. § 22–4 and, therefore, this court is not entitled to entertain any challenge to the findings.   Even if those findings were subject to review, the board's basis for denial of benefits cannot be reviewed by this court because Delucia failed to comply with P.B. § 22–4 and there is no decision of the board on a motion to correct, pursuant to P.B. § 22–7, to consider.

II. Consideration of Board's Decision Based on Findings of Fact

General Statutes § 31–236(a)(2)(B) provides for disqualification of benefits for “willful misconduct” in the court of the individual's employment.  “Wilful misconduct” is defined as “deliberate misconduct in willful 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 ․” General Statutes § 31–236(a)(16).

In this matter, the board adopted the referee's findings of fact.   The relevant findings are paraphrased as follows:

(9) Contreras was discharged on January 17, 2013.   No immediate reason was given by Delucia for the discharge but five minutes later, Delucia stated that Contreras left him in the shower too long.

(10) Contreras never deliberately failed to change Delucia's bed linen and always did so when instructed to.

(11) Contreras sent text messages on her personal cell phone while working but was never instructed to the contrary by Delucia.

100.31, record, p. 65.

The board specifically chose not to accept a subsequently submitted statement of another employee, Victoria Patten, finding it to be unreliable hearsay. 1000.31, record, p. 75.

The court's review is limited to a determination of whether the board's decision based upon the findings of fact was unreasonable, arbitrary or illegal.  Guevara v. Administrator, 172 Conn. 495–96.   There is no finding of fact to support Delucia's claim that Contreras wilfully violated the employer's non-fraternization policy.   To the contrary, the findings are that there was no wilful violation as asserted by Delucia.   The board's decision is in accordance with General Statutes § 31–236(a)(2)(B).  There is a reasonable basis for the board's decision upon the facts found.   There is no evidence upon which the court can find that the board's decision was unreasonable, arbitrary or illegal and the court can go no further because Delucia failed to file a motion to correct findings pursuant to Practice Book § 22–4.

CONCLUSION

The plaintiff's appeal is dismissed.

Robert E. Young, Judge

FOOTNOTES

FN1. The “notice of appeal rights” form BR–17, sent with the decisions of the employment security appeals division's board of review contains the following language in small print at the bottom of the page:  “If a party who files an appeal to the Superior Court wishes to dispute the Board's findings of fact, it 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.”Our appellate courts have consistently held that the absence of a motion to correct requires the trial court to accept the board's findings of fact.   See, e.g., Shah v. Administrator, Unemployment Compensation Act et al., 114 Conn.App. 170, 175, 968 A.2d 971 (2009).   The notice does not state what the “Connecticut Practice Book” is or where a party might access one, nor does the board clearly state that the motion to correct must be filed with the board, not the court.   The only relevant sections of Chapter 22 as to motions to correct are contained in Practice Book §§ 22–4–22–6.In this court's experience, most self-represented parties are unaware and inadequately informed of this procedural pitfall, the effect of which severely curtails the court's review and makes the chance of success in an appeal much more unlikely.   This cryptic notice is unlike all of the otherwise clear and exemplary instructions of the employment security division of the Department of Labor which claimants and employers receive in pursuing and defending an appeal and could be easily remedied by the board by setting forth the requirements of Practice Book §§ 22–4–22–6 within the body of the notice..  FN1. The “notice of appeal rights” form BR–17, sent with the decisions of the employment security appeals division's board of review contains the following language in small print at the bottom of the page:  “If a party who files an appeal to the Superior Court wishes to dispute the Board's findings of fact, it 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.”Our appellate courts have consistently held that the absence of a motion to correct requires the trial court to accept the board's findings of fact.   See, e.g., Shah v. Administrator, Unemployment Compensation Act et al., 114 Conn.App. 170, 175, 968 A.2d 971 (2009).   The notice does not state what the “Connecticut Practice Book” is or where a party might access one, nor does the board clearly state that the motion to correct must be filed with the board, not the court.   The only relevant sections of Chapter 22 as to motions to correct are contained in Practice Book §§ 22–4–22–6.In this court's experience, most self-represented parties are unaware and inadequately informed of this procedural pitfall, the effect of which severely curtails the court's review and makes the chance of success in an appeal much more unlikely.   This cryptic notice is unlike all of the otherwise clear and exemplary instructions of the employment security division of the Department of Labor which claimants and employers receive in pursuing and defending an appeal and could be easily remedied by the board by setting forth the requirements of Practice Book §§ 22–4–22–6 within the body of the notice.

Young, Robert E., J.