Carolyn J. Stallings v. Administrator, Unemployment Compensation Act et al. (2014)

MEMORANDUM OF DECISION

The present action is a statutory appeal concerning unemployment benefits.   The plaintiff Carolyn Stallings was terminated from Community Options Residential Services (the employer) on May 23, 2013 for wilful misconduct in the course of her employment.¹

On June 21, 2013 the defendant, Administrator, found the plaintiff eligible for unemployment benefits.   The employer filed an appeal on July 5, 2013.   On July 30, 2013, an appeals referee heard the appeal of the employer.   On July 31, 2013, the administrator's decision awarding unemployment benefits was reversed by the Appeals Referee and the plaintiff was disqualified from receiving benefits.

On August 15, 2013, the plaintiff appealed the referee's decision to the Board of Review per Connecticut General Statutes § 31–248.   On September 27, 2013, the Board of Review (the Board) affirmed the referee's decision dismissing the appeal.   On October 21, 2013, the plaintiff appealed to Superior Court under Connecticut General Statutes § 31–249b.

The matter comes to this Court on the administrative appeal docket pursuant to Connecticut General Statutes § 31–249b.

The appropriate standard of review with regard to [an unemployment compensation appeal] is limited.   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 facts nor hear evidence ․ The Superior court, therefore, is bound by the findings of subordinate facts and the reasonable conclusions of fact made by the appeals referee ․ 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;  internal quotation marks omitted.)

Latina v. Administrator, Unemployment Compensation Act, 54 Conn.App. 154, 159, 733 A.2d 885 (1999).

Connecticut General Statutes § 31–236(a)(2)(B) provides in relevant part that “an individual shall be ineligible for benefits:  ․ if, in the opinion of the administrator, the individual has been discharged ․ wilful misconduct in the course of the individual's employment.”

The Board's findings and conclusions are as follows:

“The claimant maintains that the employer's witnesses were not credible because they offered differing testimony as to where the claimant went after sleeping on the job and entering the bathroom.   We find this inconsistency to be minor and insignificant.   A prior inconsistent statement (where the inconsistency is substantial and the statement relates to a material issue) is a critical factor which must be considered in assessing credibility.   Keels v. The Perkin–Elmer Corp., Board Case No. 514–BR–89 (6/23/89).   In the case before us, the claimant's behavior after the employer's witnesses observed her sleeping on the job is not material.

The referee did not find the claimant credible in denying that she was sleeping on the job.   Unless there is evidence in the record which undermines a referee's credibility determination or the referee failed to consider critical evidence or assigned evidence inappropriate weight, a credibility determination made by a referee is entitled to deference.   See Kelly v. Administrator, Superior court, judicial district of Litchfield, Docket No. 033669 (August 24, 1982);  Basile v. The Stanley Works, Inc., Board Case No. 272–BR–88 (8/12/88).   In the case before us, there is nothing in the record which would compel us to overturn the referee's credibility determination.   Thus, we agree with the referee that the employer discharged the claimant for wilful misconduct in the course of her employment.”   Board of Review Decision (September 27, 2013) at 2–3 (Rec. at 76–77).

As indicated previously, the court does not retry facts or hear evidence.   United Parcel Service, Inc. v. Administrator, supra 385.   Nor does the court review a conclusion of the Board which rests on the weight of the evidence and credibility determinations.  Howell v. Administrator, 174 Conn. 529, 532, 391 A.2d 165 (1974);  Kaplan v. Administrator, 4 Conn.App. 152, 153, 493 A.2d 248 (1985).   The decision of the Board of Review on the merits should follow reasonably from the facts found and the correct application of law to those facts.

Based on the findings of fact in this case, the plaintiff was dismissed from her employment for her failure to remain awake and attentive to her duties during her work shift in the early a.m. hours of the subject day.   Pursuant to General Statutes § 31–249b, the court is bound by those facts found by the Board and the reasonable conclusions it reached therefrom.   The court may go no further than to determine whether the decision appealed from is unreasonable, arbitrary or illegal.  Burnham v. Administrator, Unemployment Compensation Act., 184 Conn. 317, 321–22, 439 A.2d 1008 (1981).   A party is barred from challenging the board's findings of fact on appeal to the court unless that party has timely filed a motion to correct the findings pursuant to Practice Book § 22–4 and § 22–8 which was not done in this case.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422, 828 A.2d 609 (2003);  Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. 170, 176, 968 A.2d 971 (2009).

Although this Court recognizes the procedural thicket that an applicant must pass through, the court must still take a broader look as to whether or not the administrative action taken in this case resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts.  Mattatuck Museum–Mattatuck Historical Society v. Administrator, 238 Conn. 273, 276 (1996).

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.

The court looks at the concept of “wilful misconduct” as the test for disqualifying a claimant from unemployment benefits and questions whether that test was reasonably applied to the specific facts as found in this case.   There are a series of earlier cases, which give some relevant definition to the concept of wilful misconduct, that the court finds to be still relevant here in part.

Those cases give a reasonable and effective meaning to the concept of “wilful misconduct” that could have application here.   In the case of Langlois v. Administrator, 24 Conn.Sup. 170, 179 (1963), the Court holds:

Misconduct is any wrong or improper conduct and becomes wilful if it is done intentionally, that is, purposely with knowledge, or is of such a nature as to evince a reckless disregard of consequences by him who is guilty of it ․ (Citations omitted.)

․ On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed “misconduct” within the meaning of the statute.  (Citation omitted.)

In the case of Guest v. Administrator, 22 Conn.Sup. 459 (1961), the Court gave some definition to the concept.

․ but if by direct proof, or out of the circumstances, it appears to have been the result of thoughtlessness or inadvertence, the breach cannot be held to have been wilful.

In Lazarcheck v. Administrator, 1 Conn.App. 591, 594 (1984), the Court's duty is limited in scope:

The court's ultimate duty is only to decide whether there is a logical and rational basis for the decision or whether, in light of the evidence, the board has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion ․

“Wilful” implies bad purpose, wantonness and reckless indifference.   Hannon v. Administrator, 29 Conn.Sup. 14, 17, 269 A.2d 80 (1970);  Sturges v. Administrator, 27 Conn.Sup. 215, 218, 234 A.2d 372 (1966).   “Misconduct” must be an act of wanton or wilful disregard of the employer's interest or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to employer.2

Citations omitted.

A more recent case (Tosado v. Administrator, 130 Conn.App. 266, 276 (2011)) ³ with a rather complex fact pattern delineates the standard that a court may apply to reach a proper conclusion.

[W]ilful misconduct means 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.)

General Statutes § 31–236(a)(16);  see also Regs. Conn. State Agencies § 31–236–26.

Whether the circumstances of an employee's termination constitute wilful misconduct on the employee's part is a mixed question of law and fact.

United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, supra, 209 Conn. 386.

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 find that any act or omission is misconduct, the [board] must find that the individual committed an act or made an omission which was contrary to the employer's interest including any act or omission which is not consistent with the standards of behavior which an employer, in the operation of his business, should reasonably be able to expect from an employee.”  Regs., Conn. State Agencies § 31–236–26a(a).  “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).

The Court in this case is unable to find that the Review Board's decision was based on sufficient findings of “wilful misconduct” and is therefore unreasonable in light of all of the circumstances and under Practice Book § 22–9 said decision is hereby reversed and unemployment benefits are restored to the plaintiff.

BY THE COURT

V. ROCHE, J.

FOOTNOTES

FN1. The plaintiff had been employed for 11 years with the employer..  FN1. The plaintiff had been employed for 11 years with the employer.

FN2. In the P.A. 95–323 the word “repeated” was deleted from the phrase “wilful misconduct.”.  FN2. In the P.A. 95–323 the word “repeated” was deleted from the phrase “wilful misconduct.”

FN3. The trial court was reversed in this matter involving a much more complicated fact scenario than the present case..  FN3. The trial court was reversed in this matter involving a much more complicated fact scenario than the present case.

Roche, Vincent E., J.