Elite Limousine Service, Inc. v. Administrator, Unemployment Compensation Act et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT (102.00)

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 Elite Limousine Service, Inc.

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 its 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 eligible for benefits.¹

As the Appeals Referee found:

When an individual has been discharged from a job, he will not be disqualified from receiving unemployment benefits unless it is established that the discharge was for wilful misconduct in the course of the employment.   The employer has the burden of proving that the act or acts which caused the discharge or suspension were of such nature as to constitute wilful misconduct within the meaning of the Unemployment Compensation Act. The standard of proof in administrative proceedings is proof by a preponderance of evidence.   White v. Aero–Space Techniques, Inc., Board Case No. 197–74–BR (2/21/75).   Under the preponderance of evidence standard, a party will prevail in its case if the evidence it presents is of greater weight or more convincing than the evidence offered in opposition to it;  that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.   Black's Law Dictionary 1064 (5th ed.1979).

In the present case, the employer discharged the claimant following the claimant's calling out for the remainder of his work schedule on April 18, 2013.   The claimant had completed a portion of his work that day but was unable to drive any further trips because his shoulder hurt.   The employer has not established that any incidents of wilful misconduct triggered the claimant's separation on April 22, 2013.   As a result, the referee rules that the separation is not disqualifying pursuant to Section 31–236(a)(2)(B) of the General Statutes.

Appeals Referee's Decision (July 8, 2013) at 4 (Rec. at 37), affirmed by the Board of Review (October 4, 2013).

The court does not retry the facts or hear evidence.   Although this court may have decided differently on the evidence presented, that is not the standard of review.   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

FOOTNOTES

FN1. The employer, as a corporation, is not represented by counsel which is required under Connecticut Common Law..  FN1. The employer, as a corporation, is not represented by counsel which is required under Connecticut Common Law.

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