Opinion
No. CV10 5033090S
September 9, 2010
MEMORANDUM OF DECISION
In this case, Calvin Brunson, [hereinafter plaintiff] has appealed the decision of the Employment Security Appeals Division Board of Review [hereinafter Board] affirming the appeals referee's decision affirming the Administrator's denial of unemployment benefits. The Employment Security Board of Review certified the record of this appeal to the court on January 11, 2010. For the reasons stated herein, the court upholds the decision of the board and the plaintiff's appeal is dismissed.
The record discloses the following facts. The plaintiff was employed as a part-time employee for the New Haven Register from August 19, 2008 until he was discharged on November 14, 2008 for fighting on the job. On or about April 3, 2009, the plaintiff filed a claim for unemployment benefits. By a decision dated May 15, 2009, the administrator denied the plaintiff's claim for benefits on grounds that the plaintiff was "discharged for fighting on the job after a supervisor warned him not to argue with the other employee." The administrator therefore concluded that the plaintiff was discharged for wilful misconduct in the course of his employment. The last day to file a timely appeal of the administrator's decision was June 5, 2009. On June 10, 2009, the plaintiff appealed the administrator's decision to the Employment Security Appeals Division. (Record, p. 12-14.) On July 1, 2009, the appeals referee conducted a hearing de novo to which the plaintiff and Kenyata Beard, New Haven Register mailroom manager appeared. The plaintiff testified at the hearing. By a decision issued on July 10, 2009, the appeals referee dismissed the plaintiff's appeal for lack of jurisdiction. The appeals referee found that the plaintiff filed his appeal beyond the twenty-one-day time requirement. The referee further found, after hearing the plaintiff's testimony, that the "[c]laimant admits to receiving the administrator's decision shortly after the decision was issued. The claimant further admits that he contacted the unemployment compensation department during the appeal period. However, the claimant failed to pursue his appeal during the appeal period. The claimant contends that he waited to file his appeal, until someone came with him to the office to assist him in appealing using the computer." (Record, p. 31.) The referee found that there was no evidence of compelling circumstances which prevented the claimant from timely filing his appeal. The referee therefore concluded that the plaintiff failed to establish good cause for the late appeal, and dismissed the plaintiff's appeal for lack of jurisdiction.
On July 15, 2009, the plaintiff appealed the referee's decision to the Board of Review. Acting pursuant to its authority under General Statutes § 31-249, the board reviewed the record including the tape recording of the referee's hearing. On September 28, 2009, the Board affirmed the decision of the appeals referee and dismissed the plaintiff's appeal for lack of jurisdiction. The Board concluded, based upon the record, which includes the hearing before the referee and the record, that the plaintiff failed to file a timely appeal, and failed to establish, that there was "good cause" as set forth in § 31-237a-15(b) of the Regulations of Connecticut State Agencies for the late filing of his appeal. On October 27, 2009, the plaintiff appealed the decision of the board to the Superior Court. The plaintiff did not file a motion to correct in accordance with Practice Book §§ 22-4 and 22-9. In his appeal to this court, the plaintiff addresses the merits of his discharge and does not address the late filing of his appeal or the board's determination that there was no good cause for the late filing of the appeal.
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, 283 Conn. 273, 276, 679 A.2d 347 (1996). "The court must not retry the facts nor hear evidence . . . If, however, the issue is one of law, the court has the broader responsibility of determining 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. 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.) United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 385-86, 551 A.2d 724 (1988).
The plaintiff did not file a motion to correct the board's factual findings, as Practice Book § 22-4 requires. The absence of such a motion forecloses this court from considering any facts that are not in the certified record. JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422-23, 828 A.2d 609 (2003) (["the plaintiff's] failure to file a timely motion for correction of the Board's findings in accordance with § 22-4 prevents further review of these facts found by the Board"). Therefore, the court may only consider whether the record contains evidence to support the Board's conclusions.
Practice Book § 22-4 provides: "If the appellant desires to have the finding of the Board corrected he or she must, within two weeks after the record has been filed with the Superior Court, unless the time is extended for cause by the Board, file with the Board a motion for the correction of the finding and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for . . ."
"Although it is true that [t]he purpose of the Unemployment Compensation Act is remedial, and its provisions are to be construed liberally as regards beneficiaries in order that it may accomplish its purpose;" Derench v. Administrator, 141 Conn. 321, 324, 106 A.2d 150 (1954); it is also true that "appeals with the unemployment compensation system must be taken in a timely fashion and, if they are not, they come `too late' for review." Gumbs v. Administrator, 9 Conn.App. 131, 133, 517 A.2d 257 (1986).
This appeal is governed by General Statutes § 31-241(a), which provides in relevant part that "[t]he decision of the administrator shall be final and benefits shall be paid or denied in accordance therewith unless the claimant . . . within twenty-one calendar days after such notification was mailed to his last-known address, files an appeal from such decision and applies for a hearing, provided (1) any such appeal which is filed after such twenty-one-day period may be considered to be timely filed if the filing party shows good cause, as defined in regulations adopted pursuant to section 31-249h, for late filing . . ." General Statutes § 31-241(a). Section 31-237g-15 of the Regulations of Connecticut State Agencies sets forth the relevant factors that should be considered in determining whether good cause has been shown: "(i) The extent to which the party has demonstrated diligence in its previous dealings with the administrator and the employment security appeals division; (ii) Whether the party was represented; (iii) The degree of the party's familiarity with the procedures of the appeals division; (iv) Whether the party received timely and adequate notice of the need to act; (v) Administrative error by the administrator or employment security appeals division; or the failure of the administrator, the appeals divisions or any other party to discharge its responsibilities; (vi) Factors outside the control of the party which prevented a timely action; (vii) The party's physical or mental impairment; (viii) Whether the party acted diligently in filing an appeal once the reason for the late filing no longer existed; (ix) Where there is substantial prejudice to an adverse party which prevents such party from adequately presenting its case, the total length of time that the action was untimely; (x) Coercion or intimidation which prevented the party from promptly filing its appeal; (xi) Good faith error, provided that in determining whether good faith error constitutes good cause the referee shall consider the extent of prejudice to any other party, any prior history of late filing due to such error, whether the appeal is excessively late, and whether the party otherwise acted with due diligence . . ."
"Valid [state] agency regulations have the force of statutes and constitute law." Acro Technology v. Administrator Unemployment Act, 25 Conn.App. 130, 135, 593 A.2d 154 (1991).
In this appeal, the board and the appeals referee found that the administrator's decision was mailed to the plaintiff on May 15, 2009. The board and referee further found that the plaintiff filed his appeal on June 10, 2009, which was beyond the twenty-one-day appeal period allowed by the statute. In addition, the board found that the plaintiff was apprised of his appeal rights because the "administrator's determination contains an advisement in large bold letters, `IMPORTANT NOTICE OF YOUR APPEAL RIGHTS,'" and that "[t]his advisement specifically informed the claimant that an appeal must be filed by June 5, 2009." (Record, p. 39.) The board further found that the notice of appeal rights provided to the plaintiff "advised the claimant of his right to file an appeal in person, by mail, by fax or by internet" and the board has "consistently held that a party has not acted diligently in failing to read the notice of appeal." Id.
Moreover, the board found that the plaintiff testified at the referee's hearing that "he received the letter approximately May 20, read the letter, `and that's when I called them. I called unemployment.'" Id. The board also found that the plaintiff also testified "to the conversation he had with a representative of the administrator, who advised the claimant that he had the right to appeal and that he could appeal in person or could appeal on line." Id. The board therefore found that the "claimant spoke to the representative and obtained clarification of his appeal rights before the appeal period expired." Id., 40. Therefore, based on the record, the board determined that the plaintiff's reason for his untimely appeal did not constitute "good cause" because the board found that "[e]ven if the [plaintiff] was initially confused or did not understand the appeal rights advisement, the plaintiff failed to "act with due diligence once the reason for the late filing no longer existed." Id. The board adopted the referee's findings of fact as its own and concluded, based on those findings and the record, that the referee was required by law to dismiss the appeal. The board affirmed the referee's decision and dismissed the plaintiff's appeal.
The Superior Court, on hearing appeals from the board, is bound by factual findings of the board; this includes evaluating the credibility assigned to witnesses. The board reviewed the record in this appeal, including the taped recording of the appeals referee's hearing. The board determined that the referee's findings were supported by the evidence and adopted those findings as its own in concluding that the plaintiff's appeal was late.
"A reviewing court must accept the findings made by the Board as to witness credibility and must defer to the agency's conclusions to be drawn from the evidence. Howell v. Administrator, Unemployment Compensation Act, 174 Conn. 529, [391 A.2d] (1978); Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, [ 554 A.2d 292] (1989)." Cooper v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New London at Norwich, Docket No. CV 98 115055 (February 24, 2000, Corradino, J.).
A review of the certified findings of fact demonstrates that there is sufficient evidence to support the board's conclusion that the plaintiff's appeal was late. The board's decision is consistent with the applicable statute which requires that appeals be taken within twenty-one days of the issuance of the decision unless the late filing is excused for good cause. The evidence supports the board's determination that the plaintiff did not act as a reasonably prudent individual so as to provide good cause for the late filing. Regulations of Connecticut State Agencies § 31-237g-15. The board's decision to dismiss the plaintiff's appeal was reasonable because an appeal beyond the twenty-one-day appeal period is "too late for review." Gumbs v. Administrator, supra, 9 Conn.App. 133.
Accordingly, there is no basis for this court to conclude that the board acted unreasonably, arbitrarily, illegally or otherwise abused its discretion in affirming the appeal referee's decision to dismiss the plaintiff's appeal for late filing. The decision of the board is affirmed and the plaintiff's appeal is dismissed.