Mayous K. Karrat v. Administrator, Unemployment Compensation Act et al. (2014)

MEMORANDUM OF DECISION

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

The appellant, Mayous K. Karrat, was employed by the defendant, Student Transportation of America (STA of Connecticut), as a school bus driver, from October 2, 2002 until her discharge on March 5, 2013.   On April 2, 2013, the administrator found the following facts.   The appellant was discharged due to her failure to verify with her employer the identity of the individuals to whom she released one of the children on her bus.   In particular, the appellant allowed two strangers, alleging to be the child's grandparents, to remove the three-year-old child from the school bus.   The child has difficulty verbally expressing himself but is capable of repeating words and/or questions that are posed to him.   Pursuant to the terms of her employment, the appellant is not supposed to allow unauthorized adults to board the school bus.   The employer failed to respond to the rebuttal request asking it to identify the specific policy violated by the appellant.   The administrator subsequently, found that, pursuant to § 31–236–26 of the Regulations of Connecticut State Agencies, the appellant is not entitled to benefits because she was discharged for reasons which constitute deliberate misconduct in wilful disregard of the employer's interest during the course of employment.

On April 22, 2013, the appellant filed an appeal from the administrator's determination and a hearing was held, via telephone, before the referee on May 13, 2013.   Both the appellant and the terminal manager for STA of Connecticut were present at the hearing.   On May 16, 2013, the referee reversed the administrator's decision on the ground that, at the time the student was released to the individuals alleging to be his grandparents, the appellant was not aware that her actions were in violation of the rules.   The referee found that the employer failed to meet its burden of proving that the appellant engaged in a knowing violation of the rules.   The referee further found that, despite the employer's assertions to the contrary, the appellant provided sufficient evidence that the child was capable of responding to questions posed to him.   In addition, the referee found that “the affirmation by the child, combined with the employer's failure to provide names of authorized individuals, and the claimant's unfamiliarity with the stop and child, provides sufficiently mitigating circumstances to negate the wilfulness of the claimant's conduct.”   The referee therefore reversed the administrator's decision and found that the appellant was eligible for benefits.

The employer filed a timely appeal to the Board of Review on June 4, 2013.   On August 16, 2013, the Board issued a decision reversing the referee's decision and finding that the appellant was disqualified for unemployment compensation benefits.   The Board based its decision on the conclusion that the referee erred in elevating the appellant's inconsistent statements as to what occurred over the consistent statements provided by the employer.   The Board concluded that the inconsistencies in the statements provided by the appellant in the administrator's predetermination hearing and in her testimony before the referee require a finding that the appellant was aware of her employer's policy requiring her to confirm the identity of the individuals alleging to be the child's grandparents before releasing the child to their custody.   The Board further found that, even if the appellant was truly unaware of the employer's policy, under the “deliberate misconduct” definition of wilful, the appellant's reliance on the words of a three-year-old special needs child and the strangers' apparent kindness in reaching the decision to release the child to the strangers' custody constitutes wilful misconduct.   In reaching its decision, the Board adopted the referee's findings of facts, with the exception of modifications it made to the referee's finding of fact nos. 4–8.   Accordingly, the Board reversed the referee's decision and, pursuant to § 31–273–4(b) of the Regulations of Connecticut State Agencies, waived any overpayment created by its reversal of the referee's decision because it found that the referee's critical findings of fact were not supported by the evidence in the record.

The appellant filed the present appeal to the Superior Court arguing that reversal of the Board's decision is proper because the Board neglected to consider several mitigating factors that weighed in her favor.   The appellant further argues that her conduct did not constitute deliberate misconduct in wilful disregard of the employer's interests.

“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, 74 A.3d 519 (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 is whether the Board correctly found that the appellant's failure to verify the identities of the individuals to whom she released the child constitutes wilful misconduct in disregard of the employer's interest.   In adopting the referee's findings of fact, the Board found that the employer maintains a policy that requires its drivers to ensure that students are dropped off to authorized parties.   The Board also found, however, that “the employer does not maintain a list of parties who are authorized to pick up each child from the buses.”   The employer was negligent in not providing such a list.   Furthermore, the Board's findings indicate that the bus drivers are required to call dispatch only in instances where they are unsure that the individuals picking the child up have permission to do so.   Consequently, the Board's findings do not allow for the conclusion that the appellant engaged in deliberate misconduct in wilful disregard of the employer's interest as outlined in § 31–236–26a(c) of the regulations.

In this particular instance, at the time the appellant released the child to the individuals believed to be his grandparents, she did not have reason to know that the act “was contrary to the employer's expectation” because she was operating under the belief that she, in fact, was acting in conformity with the employer's expectations.   The fact that the appellant was “unaware of [the child's] disability” on the day of the incident lends further truth to this conclusion because, at the time of the appellant's communication with the child, she could not have known that the child was merely repeating what she said to him.   In addition, none of the evidence presented to the Board allows this court to come to the conclusion that the appellant acted with reckless indifference.   Furthermore, it is worth noting that, although the Board concluded that the appellant violated the employer's policy because she “[allowed] a child with special needs to exit her bus in the company of strangers,” there was really no way that the individuals picking the kids up on the route would not be strangers to the appellant because:  (1) the appellant had only driven that particular bus route twice before;  (2) the employer did not maintain a sheet listing individuals authorized to pick the children up;  and (3) there was no information provided to the appellant about the child's verbal communication problems;  and (4) the appellant was an employee since 2002 without incident.   The claimant cannot be said to have acted in a “knowing violation” or with deliberate indifference to the employer's expectation where the evidence leads to the conclusion that, at the time the act was committed, she was not aware that what she was doing was in violation of the employer's interests.   See Regs., Conn. State Agencies § 31–236–26b(a).

The Board is reversed and the judgment of the trial referee is reinstated.

William J. Lavery, Judge Trial Referee

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