Nodine's Smok. v. Administrator

Full title: Nodine's Smokehouse, Inc. v. Administrator, Unemployment Compensation Act…

Court: Connecticut Superior Court Judicial District of Litchfield at Litchfield

Date published: Jan 17, 2007

2007 Ct. Sup. 1556 (Conn. Super. Ct. 2007)

Opinion

No. LLI-CV-05-4003268-S

January 17, 2007

MEMORANDUM OF DECISION

ELIOT D. PRESCOTT, J.

This is an administrative appeal brought by Nodine's Smokehouse, Inc. (the "employer"), from a decision of the Employment Security Review Board (the "board") granting unemployment compensation benefits to the claimant-employee, Mark Dougherty (the "employee"). The employer claims that the board improperly concluded that the employee left his employment for good cause after an assault by a co-worker. For the reasons set forth below, the employer's appeal is dismissed.

PROCEDURAL HISTORY

On January 19, 2005, the employee filed a claim for unemployment compensation benefits pursuant to Chapter 567 of the General Statutes. See Conn. Gen. Stat. § 31-222 et seq. On January 25, 2005, the Administrator of unemployment compensation benefits (the "Administrator") determined that the employee was ineligible for benefits because he voluntarily left his employment. Pursuant to Conn. Gen. Stat. § 31-241, the employee filed a timely appeal to a referee. The referee conducted a de novo hearing, made findings of fact, and, by written decision, found the employee was ineligible for unemployment compensation benefits. See Conn. Gen. Stat. § 31-242. Specifically, the referee concluded that the employee "left suitable work voluntarily without good cause attributable to the employer" thereby disqualifying him from receiving benefits pursuant to Conn. Gen. Stat. § 31-236(a)(2)(A).¹

1 Conn. Gen. Stat. § 31-236(a)(1)(A) provides in relevant part: "If, in the opinion of the administrator, the individual has left suitable work voluntarily and without good cause attributable to the employer . . . such person's eligibility shall be limited as provided in subsection (b) of this section . . ."

The employee appealed the referee's decision to the Employment Security Review Board (the "Board"). See Conn. Gen. Stat. § 31-249. The Board, after finding additional facts, and modifying some of the facts found by the referee, reversed the decision of the referee. The Board concluded that the claimant had left his employment for good cause attributable to the employer after he had been assaulted by a co-worker and the employer subsequently failed to ensure adequately the employee's future safety in the workplace. Accordingly, the Board determined that the employee was eligible for benefits.

On August 30, 2005, pursuant to Conn. Gen. Stat. § 31-249b, the employer filed this appeal to Superior Court. The Administrator has filed the administrative record of the proceedings and the parties have submitted briefs. The court also heard oral arguments on the appeal. The employer did not file a motion to correct the findings of the Board, as is its right, pursuant to P.B. § § 22-4 and 22-9(b).

FACTS

The record in this case establishes that Board made the following relevant finding of facts.² The employee worked full-time as a meat packer for the employer from July 2004 until December 7, 2004, when he voluntarily quit his job after being physically assaulted by a coworker, Ricardo Arroyo. Arroyo pushed the employee in the chest causing the employee to fall backwards into a tub of Canadian bacon causing injuries to the employee's right shoulder, elbow and neck.

2 In its written decision dated July 14, 2005, the Board adopted many of the referee's findings of fact, modified four of the findings, and specifically rejected one of the findings. The Board also found additional facts. As a result, the Board's findings consist of those made by the Board in its decision and those findings of the referee that were not modified or rejected.

On the same day, the employee told his supervisor, Jim Sedgwick, that Arroyo had pushed him and that he was going to call the police. Sedgwick immediately reported the assault to his supervisor, Andy Kish. Sedgwick also spoke to Arroyo who admitted that he had pushed his co-worker during an argument.

Kish then spoke to the employee and told him that he could take no action against Arroyo until he had spoken with the owner of the company, Ron Nodine. Nodine was not present at the business that day.

Following the assault and after helping Sedgwick package ten-pound boxes of sausage, the employee told Kish that he was going home for the day. The claimant did not seek medical attention immediately.

The following day, December 8, 2004, the employee called Kish and reported that he was not coming to work because he was in pain. Kish told the employee to get medical treatment. In order to file a workers' compensation claim, the employee needed Kish to provide appropriate forms, but Kish did not have the forms to fill out at that time.

The employee's doctor cleared the employee to return to work on December 28, 2004, with limited medical restrictions. In the meantime, however, the employee had learned from a co-worker that Arroyo had not been disciplined by the employer for the assault. This information caused the employee to fear returning to work because of the nature of the attack and because he worked at a facility in which employees had access to knives and worked around dangerous machinery. If the employee had spoken to the employer about his concerns, the employer could have assigned him to light duty work and separated him from Arroyo.³ The employee, however, did not feel safe at work because he believed that the employer had condoned the violence against him by not seriously disciplining Arroyo or assuring him that he could be protected against further assaults.

3 Read as a whole, the Board's decision is less than clear on the substance of direct conversations, if any, between the employee and the employer regarding what could be done to assure his safety at work. On one hand, the Board explicitly rejected a finding by the referee that the employee did not tell the employer that he objected to working with Arroyo. On the other hand, the Board makes reference to the remedy that "the employer indicated that it would have offered" to the employee. The court concludes that the decision is best read to mean that the employee and the employer did not directly converse about this issue, but, if they had, the employer would have simply told the employee that it would have the employee work in an area at the facility where Arroyo was not assigned.

The Board, in its decision, also found the following facts, which the Court quotes directly: "[Arroyo] admitted to the employer that he had pushed the [employee] into a tub, thus injuring the [employee]. When the [employee] was released to return to work, he learned that the employer had not taken any disciplinary action against the co-worker. The claimant reasonably believed that the employer had condoned the violence by permitting the co-worker to assault him with impunity, and that he was not safe returning to the meat packaging establishment, where employees had access to knives and worked around dangerous machinery. The only remedy that the employer indicated that it would have offered the claimant was to separate him from the co-worker. Even if the [employee] did not work directly with the co-worker, there is no evidence that the employer took any action to discipline the co-worker or to assure the claimant that he would be safe in the workplace."

As a result of these findings, the Board concluded that the employee had good cause, attributable to the employer, to leave his employment. This appeal followed.

STANDARD OF REVIEW

The Connecticut Supreme Court has just recently reiterated the standard of review governing unemployment compensation appeals. "[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417, 828 A.2d 609 (2003).

"Similarly, chapter 22 of the rules of practice, which describes the function of the trial court in unemployment compensation appeals, specifies that the court is not to "retry the facts or hear evidence. [The trial court] considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. Practice Book § 22-9(a)." Fullerton v. Administrator, Unemployment Compensation Act, 280 Conn. 745, 761 (2006).

In JSF Promotions, supra, 265 Conn. 417, the Supreme Court emphasized the extremely deferential standard of review to be applied by a trial court regarding the Board's factual conclusions. In unemployment compensation appeals in which the plaintiff fails to file a motion to correct the findings of the Board in accordance with P.B. §§ 22-4 and 22-9, the trial court may not further review the facts found by the board. Id., 422-23. Such a motion must be filed with the Board within two weeks of the filing of the record in the superior court. P.B. § 22-4; Id., 422.

The trial court is bound by the findings of subordinate fact and reasonable factual conclusions of the Board. Guevara v. Administrator, 172 Conn. 492, 495, 374 A.2d 1101 (1977). If the Board's factual conclusions are reasonably and logically drawn from the subordinate facts found, the trial court is legally powerless to alter them. Id., 495-96.

The Board's legal conclusions must stand if they result from a correct application of the law to the facts found and could reasonably and logically follow from such facts. Mattatuck Museum-Mattatuck Historical Soc. v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 276 (1996). In the end, the court is limited to determining, based on the record, whether the legal conclusion of the Board was unreasonable, arbitrary, illegal or an abuse of discretion. Id., 276. In accordance with this standard of review, the court now turns to the specific claim of error raised by the employer in this case.

LEGAL ANALYSIS

The employer claims that the Board improperly concluded that the employee left his employment for good cause because he never spoke with his employer regarding his concerns for his safety in the workplace and sought a remedy before leaving his employment. In asserting this claim, the employer relies on § 31-236-22 of the Administrator's regulations, which provide in relevant part: "To determine that an individual voluntarily left suitable work for sufficient cause connected with his work, the Administrator must find, with respect to working conditions, that . . . (2) the individual expressed his dissatisfaction regarding the working condition to his employer and unsuccessfully sought a remedy through those means reasonably available to him before leaving his employment." Regs., Conn. State Agencies § 31-236-22.

The Board concluded that strict compliance with this obligation was not required because, under the facts and circumstances in this case, such actions would have been futile. In reaching this conclusion, the Board relied heavily on the fact that the employer had not taken any actions to discipline Arroyo and that the only remedy the employer conceded it would have provided was to separate the assaultive co-worker from the employee.

The employer does not appear to dispute the underlying legal principle that compliance with this regulation should be excused if such actions would have been futile in providing reasonable assurance to the employee that he would be protected from additional acts of violence at work. As our courts have long held, "it is not the policy of our law to require the doing or performing of a vain or futile act as a condition precedent to the enjoyment of a right or benefit to which a claimant is otherwise entitled." Auger v. Administrator, 19 Conn.Sup. 184, 187 (1954); see also Barber v. Jacobs, 58 Conn.App. 330, 336, 753 A.2d 430, cert. denied, 254 Conn. 920, 759 A.2d 1023 (2000) ("the law does not require the performance of a futile act").

In light of the deferential standard of review to be applied in this case, the Board's conclusion that it would have been futile for the employee to express his dissatisfaction to the employer and to seek a remedy from the employer must be upheld for several reasons. First, it is important to note that the employee immediately informed his supervisor of the assault and his intention to call the police. The employer spoke to Arroyo who admitted to pushing the employee. The employer subsequently learned that the employee had been physically injured to such an extent so as to require him to miss several weeks of work. Consequently, the employer cannot reasonably argue that the employee failed to express his dissatisfaction with the working conditions directly to the employer. The employer clearly was on notice that a serious problem existed between these two employees, and, that Arroyo was at fault.

As to the second prong of the regulation's test, the Board found that the employer's failure to discipline Arroyo for a workplace assault created a reasonable belief in the employee's mind that employer condoned, or at least seriously minimized the assault, and that it was unwilling or unable to ensure that the workplace, which was full of dangerous items and machinery, was safe for the employee. Significantly, the employer has conceded that the only remedy that it was prepared to offer the employee was to separate him from Arroyo. This minimal remedy, of course, could not reasonably assure that Arroyo would not assault the employee again. This concession also distinguishes this case from the cases cited by the employer in which courts have held that an employee was ineligible for benefits because he or she failed to seek a remedy from the employer. See Embelton v. State, Superior Court, Judicial District of Tolland at Rockville, Docket No. CV 97 0063755 S (Mar. 30, 1998) (claimant failed to inform employer of concerns prior to terminating employment); Cibula v. Administrator, Superior Court, Judicial District of Hartford-New Britain at New Britain, Docket No. CV89-0434447 (Jul. 12, 1991) [ 4 Conn. L. Rptr. 696] (claimant failed to provide any information regarding health-related concerns to employer prior to terminating employment; employer would have remedied situation had they been provided notice); Secombe v. Administrator, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. CV 88 00097996 (Oct. 17, 1991) (claimant failed to inform employer when only informed co-worker of concerns prior to terminating employment; employer would have remedied situation).

In essence, the employer's position appears to be that the employee, in order to be eligible for benefits, had an obligation to contact his employer only so that he could hear directly from the employer that it had not taken seriously the workplace assault and/or that it was only willing to make sure that Arroyo and the employee did not work directly side by side. To state this proposition is to refute it. Of course, there is no evidence in the record below that the employer made any effort to reach out to its injured employee and discuss what potential options existed to remedy this serious problem.

In a similar vein, the employer's contention that the employer had no way of knowing that the employee had an ongoing fear of Arroyo or returning to work is not plausible. The employee had received injuries sufficient to keep him out of work and viewed the altercation as serious enough to consider calling the police.

As the Administrator properly notes in her brief, it is not an employee's obligation to maintain order and discipline in the workplace. The employer here apparently made a business decision to do little or nothing about this assault and it is not surprising that, as a result, the employee did not feel safe in returning to work given the employer's concession that the only remedy it would have offered was to separate the two employees. Accordingly, the Board's conclusion that the employee left work for good cause attributable to the employer is not unreasonable, arbitrary, illegal or an abuse of discretion. Accordingly, the appeal is dismissed.