LLC v. Administrator, Unemployment Compensation Act et al. (2014)

MEMORANDUM OF DECISION

This unemployment compensation appeal to the Superior Court is brought by the employer, Image First Healthcare Laundry Spec., Berstein–Magoon–Gay, LLC (Image First), from a November 27, 2013, decision of the employment security appeals division board of review (the board).

On August 29, 2013, the defendant, administrator of the unemployment compensations act, (the administrator), found Lidia P. Peguero, an employee of Image First ineligible for unemployment benefits.   The administrator found that Peguero had voluntarily quit her job as a result of medical issues resulting from her pregnancy.   The administrator further found that she had failed to pursue all alternatives, such as a FMLA leave, and had failed to demonstrate good cause attributable to the employer for leaving her job.   Therefore, the administrator found her to be ineligible for unemployment compensation, and denied benefits.

Peguero appealed the decision to the next level, and the employment security appeals referee (the referee), after conducting a hearing de novo, made findings of fact, and reversed the administrator's decision and sustained her appeal.   The referee found that the employers' workplace caused Peguero's severe morning sickness, and that Peguero had sought a reasonable remedy which the employer denied.   Accordingly, Peguero had sustained her burden by showing she had left her position for good cause attributable to the employer, and therefore she was entitled to receipt of benefits.   Image First, the employer, did not participate in the hearing.

Image First appealed the referee's decision to the board, and on November 27, 2013, the board adopted the referee's findings of fact, affirmed the referee's decision and dismissed the appeal.¹  Image First filed a timely appeal of the decision to this court.   The board certified the record pursuant to General Statutes § 31–249b and Section 31–237g–51 of the Connecticut State Agencies Regulations.   The administrator has filed a motion for judgment requesting the court to dismiss Image First's appeal and affirm the board's decision.²

STANDARD OF REVIEW

Under General Statutes § 31–249b, the court does not undertake de novo review for unemployment compensation appeals from the Employment Security Board of Review and is bound by those facts found, and reasonable conclusions reached from them.   The court may go no further than to determine whether the decision appealed is unreasonable, arbitrary or illegal.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417–18, 828 A.2d 609 (2003);  Burnham v. Administrator, 184 Conn. 317, 321–22, 439 A.2d 1008 (1981).

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.”  Practice Book § 22–9.

“Practice Book § 22–4 provides the mechanism for the correction of the board's findings.   If the [claimant] desires that the findings be corrected, the [claimant] must, within two weeks of the filing of the record in the Superior Court, file with the board a motion for correction of the findings.”   (Internal quotation marks omitted.)  Belica v. Administrator, Unemployment Compensation Act, 126 Conn.App. 779, 786 (2011).  “[A] [claimant's] failure to file a timely motion for correction of the board's findings in accordance with [Practice Book] § 22–4 prevents further review of those facts found by the board.”  Id.

Here the board adopted the factual findings of the referee.   Since Image First did not file a motion to correct with the board within two weeks of the filing of the record with the court, as required by Practice Book § 22–4, which prevents further review of those facts, the board's findings are binding on this court.   Therefore, the court reviews the decision only to determine if the board's decision was unreasonable, arbitrary, or illegal.  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 417–18.

ANALYSIS

General Statutes § 31–236(a)(2)(A), provides that an individual is ineligible for benefits if the individual left suitable employment without good cause attributable to his employer.³  Reg. Conn. Agencies, D.O.L., § 31–236–21(a)(1)(A)(1997), provides that good cause attributable to the employer for a voluntary leaving of employment with respect to working conditions is present when the conditions threaten the individual's health, either by causing illness or by contributing to the aggravation or worsening of the individual's medical condition.   Section 31–236–22(a)(1)(C) further requires, with respect to good cause, that the individual shall present competent evidence that the medical condition complained of necessitated her leaving her employment, she advised the employer of her condition, and she unsuccessfully sought a remedy through those means reasonably available to her before leaving employment.   Pursuant to Regs. Conn. Agencies, D.O.L., § 31–237g–26(c)(1997), if a non-appealing party fails to attend the referee's hearing, the referee shall hold the hearing and render decision on the merits, unless that party has good cause for failing to attend.

Here, the referee and the board found that the employer, Image First, offered no reason for failing to participate in the referee's hearing and thus did not establish good cause for failing to attend.   The referee and the board further found that the heat in the employer's facility during the summer aggravated Peguero's severe morning sickness, including many instances of nausea and vomiting throughout the workday.   Although she requested a leave of absence from her employer until she began to feel better, that request was denied, and Image First advised Peguero to provide two weeks' notice if she could no longer work.

Peguero left suitable work voluntarily with good cause attributable to the employer, pursuant to General Statutes § 31–236(a)(2)(A), and is eligible for benefits.   The court finds that the board's decision was justified in the conclusion it reached.

CONCLUSION

The appeal is dismissed.

Swienton, J.

FOOTNOTES

FN1. In adopting the referee's findings of fact, the board substituted the word “exacerbated” in place of the word “exasperated,” and added several additional words in order to read correctly..  FN1. In adopting the referee's findings of fact, the board substituted the word “exacerbated” in place of the word “exasperated,” and added several additional words in order to read correctly.

FN2. The court entered orders regarding a briefing schedule.   The appellant (petitioner) did not file a brief..  FN2. The court entered orders regarding a briefing schedule.   The appellant (petitioner) did not file a brief.

FN3. General Statute § 31–236 provides in relevant part “(a) An individual shall be ineligible for benefits ․ (2)(A).   If, in the opinion of the administrator, the individual has left suitable work voluntarily and without good cause attributable to the employer ․”.  FN3. General Statute § 31–236 provides in relevant part “(a) An individual shall be ineligible for benefits ․ (2)(A).   If, in the opinion of the administrator, the individual has left suitable work voluntarily and without good cause attributable to the employer ․”

Swienton, Cynthia K., J.