Terrence T. Barney v. Administrator, Unemployment Compensation Act et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT

The court has reviewed the record certified to it by the Board of Review, the defendant's motion for judgment, the plaintiff's pleadings, and has considered all of the submissions and the arguments of the Assistant Attorney General, and the plaintiff Terrence T. Barney.

The court has no authority to find facts in an unemployment compensation appeal hearing.   It is limited to reviewing the record certified to it by the Board of Review.   Credibility of witnesses is evaluated at the administrative level and not in this court hearing.   In order for the court to review the facts, a motion to correct the findings must have been filed.   That was not done in this case, although it is clear that notice was given concerning that procedure in the decision itself sent to the plaintiff.

In the recent case of Gary A. Chicatell v. Administrator Unemployment Compensation, decided August 20, 2013 the Appellate Court stated the following:  “[T]he court may not substitute is own conclusions for those of the administrative board ․” (Internal quotation marks omitted.)  Tosado v. Administrator, Unemployment Compensation Act, 130 Conn.App. 266, 274, 22 A.3d 675 (2011).   Further, it bears repeating that “[i]n the absence of a motion to correct the findings of the board, the 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.”  (Internal quotation marks omitted.)  Id., 275, citing Practice Book § 22–9(a).   So that even if this court were to disagree with the result, it is limited in its review.

The court understands the claim of the plaintiff, but is by law required to treat this as a record review not a new hearing.   The issue therefore, is whether the decision of the Board of Review was unreasonable, arbitrary or illegal in determining that the claimant was ineligible to receive benefits because he was discharged for wilful misconduct.

As the Board of Review found:

An employee's refusal to comply with an order by her employer regarding a matter of job performance or conduct during working hours demonstrates a disregard of the employer's interests and constitutes wilful misconduct unless it is established that the order was unreasonable or that the employee had good cause for the refusal.   Pells v. Holiday Inns, Inc., Board Case No. 817–83–BR (7/7/83;) Zeunek v. Cushman Industries, Inc., Board Case No 1345–77–BR (5/27/78).   Displays of anger and protest may constitute wilful misconduct if they create a condition that adversely affects the employer's interest.   See e.g. Aumiller v. Burndy Corporation, Board Case No. 2857–80–BR (1/6/81).   Moreover, creating unwarranted disruption in the workplace is considered insubordination.   Holmes v. Hale Electronics, Board Case No. 821–76–BR (1/17/77) (claimant committed wilful misconduct when he carried out its threats to disrupt a meeting if his vacation demands were not met).   Under the facts presented, which are corroborated by the employer's credible testimony and March 22, 2013 termination report, we find that the claimant's continued protest after being repeatedly told to report to his assignment, constituted insubordination rising to the level of wilful misconduct.

Board of Review Decision (February 15, 2013) at 2–3 (Rec.74–75).

The court does not retry the facts or hear evidence.   The court finds the decision of the Board of Review on the merits follows reasonably from the facts found, and is correct.

The decision is affirmed, and the defendant's Motion for Judgment, Motion # 102.00 is granted.

The appeal is dismissed.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

Karazin, Edward R., J.T.R.