Sherry Novick v. Administrator, Unemployment Compensation Act et al. (2016)

MEMORANDUM OF DECISION

In this case, the plaintiff, Sherry Novick, was employed by Gates GMC Truck, Inc., in North Windham, CT, from February 3, 2014 to May 29, 2015.  She was discharged on that date for larceny of currency.  The plaintiff applied for unemployment compensation benefits.  That application was denied by an adjudicator on the grounds that the plaintiff was discharged for wilful misconduct.  The plaintiff appealed, and the adjudicator's decision was upheld by an appeals referee.  The plaintiff again appealed, and the decision of the appeals referee was upheld by the board of review.  Now, on appeal to this court, the plaintiff argues that she should be found eligible for unemployment compensation benefits because the decision of the board was based on statements that were false.  The defendant has filed a motion for judgment seeking judgment in its favor.  For the following reasons, the court upholds the decision of the board of review.  Accordingly, the defendant's motion for judgment is granted, and the plaintiff's appeal is dismissed.

The record discloses the following facts:  The plaintiff was employed by Gates GMC Truck, Inc., of North Windham, CT, from February 3, 2014 to May 29, 2015.  She was employed in the accounts payable office.  The plaintiff was discharged on May 29, 2015, for larceny of currency.  The facts supporting the discharge showed that on May 23, 2015, Jamie Laskow, service manager, asked the plaintiff for a post-it note in order to leave a note for Sandra Rainsville, an administrative assistant, who was not in her office, because he had $30.00 cash from the sale of scrap metal to give to Rainsville.  The plaintiff gave him the requested post-it note, and he wrote on the note that the cash needed to be receipted into account 61D. Laskow placed the money and the post-it note underneath Rainsville's transparent desk pad and placed a pad of paper on top of the desk to hide the cash from view and left.  After Laskow left Rainsville's office the plaintiff went into the office and removed the money from underneath the transparent desk pad, counted it, and put the money back under the desk pad.  She placed the pad of paper in the same location on top of the transparent desk pad.  Ten seconds later, the plaintiff re-entered Rainsville's office and removed the cash from underneath the transparent desk pad and walked out of the office with the $30.00.  The plaintiff did not tell her supervisor, Office Manager Debbie Miller, that she took the money, and she did not document the cash in the employer's receipt system.  The plaintiff alleges that she put the cash in her desk drawer to keep it safe;  however, her desk drawer did not lock.  The plaintiff returned to work on May 26, 2015, and she did not give the $30.00 to Rainsville nor did she report to Miller that she had the $30.00.  On May 28, 2015, Laskow questioned why the $30.00 had not been receipted.  Laskow went into Rainsville's office, looked under the transparent pad, and saw that the $30.00 was missing.  Miller was informed of the missing money went around the office asking if anyone had the money.  The plaintiff did not respond to her questions.  Miller next viewed the May 23, 2015, video surveillance of Rainsville's office.  The video showed the plaintiff taking the $30.00 from Rainsville's office.  Miller had another conversation with the plaintiff subsequently and, despite having the opportunity to do so, the plaintiff did not mention the cash to Miller.  Later that day, the plaintiff placed $30.00 inside an envelope and left the envelope inside a standup file inside Rainsville's office and did not tell Miller or Rainsville about the cash.

By decision dated June 23, 2015, the adjudicator denied the plaintiff benefits finding that these circumstances showed that the plaintiff had been discharged for wilful misconduct in the course of her employment against her employer's interest.  The plaintiff appealed.  By decision dated July 24, 2015, the appeals referee affirmed that decision, finding that, under the above facts, the plaintiff was disqualified for benefits by reason of her larceny of currency.

General Statutes § 31–236(a)(2)(B) provides that an individual is ineligible for benefits if he or she was discharged or suspended for wilful misconduct in the course of an individual's employment.  The referee noted that General Statutes § 31–236(a)(16) further provides that, except in cases of a discharge resulting from absence from work, “wilful misconduct” means:  (1) deliberate misconduct in wilful disregard of the employer's interest, or (2) a single, knowing violation of an employer's reasonable and uniformly enforced rule or policy, when reasonably applied, unless the violation is due to an employee's incompetence.  Moreover, the referee noted that General Statutes § 31–236(a)(2)(B) also provides that an individual will be disqualified if he or she is discharged for “conduct constituting larceny of property or service, the value of which exceeds twenty-five dollars, or larceny of currency, regardless of the value of such currency.”  Larceny is defined as follows:  “A person commits larceny when, with the intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from its owner.”  General Statutes § 53a–119.  Applying those standards to the facts, the referee concluded that the plaintiff was discharged for larceny in the course of her employment and, therefore, disqualified from receiving unemployment compensation benefits.

The plaintiff next appealed to the board of review.  She disputed the findings and charged for the first time, that her employer does not uniformly enforce its policies.  By decision dated September 10, 2015, the board found that that referee adequately addressed the plaintiff's contentions and that his findings were supported by the record and his conclusions consistent with those findings and the provisions of the Connecticut Unemployment Compensation Act. It further found plaintiff's new issues to be outside the record and immaterial.  It adopted the referee's findings of fact, with some additions, and otherwise affirmed his decision and dismissed the plaintiff's appeal accordingly.

The plaintiff thence appealed to this court.  In her court appeal, plaintiff does not deny taking the money.  Her petition argues, in effect, that she took the money to keep it secure, that she failed to return the money promptly due to distractions, and that she had no idea people were looking for the money.  She contends that the agency's decision was based on statements that were false.

The court's standard of review in 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,” Latina v. Administrator, Unemployment Compensation Act, 54 Conn.App. 154, 159, 733 A.2d 885 (1999) quoting Mattatuck Museum–Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 276, 679 A.2d 347 (1996).  Both the findings of subordinate facts and the reasonable conclusions of fact made by the agency are binding on this court.  Id. Should the issue involve a question of law, however, the court's review responsibility is broader.  The court must determine “whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts.”  Id. While a 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.  Id.

In the present case, the court is bound by the findings of subordinate facts and reasonable conclusions of the board.  The plaintiff never sought to correct the board's factual findings, and, thus, she is precluded from attacking the factual findings.  See, Practice Book § 22–4;  JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422–23, 828 A.2d 609 (2003) (court cannot review facts found by the board when plaintiff failed to file motion to correct the findings of the board).

The court finds that the board's conclusion that the plaintiff was discharged for larceny of currency, which disqualifies her for benefits under General Statutes § 31–236(a)(2)(B), is supported by the findings of fact, and is reasonably drawn from those facts.  The court further observes that the plaintiff offers no persuasive grounds for reversal on appeal.  This court finds that the board ruled fairly and within its authority, and it will not reverse that determination.  The case turned on the credibility and persuasiveness of the witnesses.  The board effectively found the plaintiff to be not credible, and it found the employer's arguments to be persuasive.  This court cannot substitute its judgment for that of the board on those points.  It is generally the province of the agency, as trier of fact, to determine the credibility of witnesses and weight of the evidence.  Howell v. Administrator, Unemployment Compensation Act, 174 Conn. 529, 532, 391 A.2d 165 (1978).  The board in this case acted fairly within the scope of its adjudicatory powers.  The board's decision correctly applied the law to the facts found and its decision is rational and logical and not unreasonable or arbitrary.  The decision is upheld.

For all of the foregoing reasons, the defendant's motion for judgment is granted, and the plaintiff's appeal is dismissed accordingly.

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.