Opinion
CV195044938S
06-11-2019
Sherry RADZUINAS v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, et al.
UNPUBLISHED OPINION
OPINION
Anthony V. Avallone, Judge
This is a statutory appeal concerning the granting of unemployment compensation. The plaintiff filed an application for unemployment compensation benefits. The Administrator granted the plaintiff claimant’s application for benefits. The employer appealed the decision of the Administrator. A hearing was conducted de novo by the Referee and findings of fact were made and the decision of the Administrator was reversed. The plaintiff appealed to the Board of Review and the Board adopted the findings of fact with modification, and affirmed the Referee’s decision. The plaintiff appealed the decision of the Board of Review to the Superior Court.
The plaintiff did not file with the Board a motion for correction of the Findings of Fact as required by Practice Book § 22-4. The plaintiff has filed a brief in support of the appeal. The brief is essentially a summary of plaintiff’s version of the facts along with new assertions on clarifications. The defendant Administrator has filed a brief in opposition to the appeal. The court has conducted a review of the complete record.
Standard of Review
Under General Statutes § 31-249b, the Superior Court does not undertake de novo review for unemployment compensation appeals from the Employment Security Board of Review. Rather, based upon the record submitted by the parties, the court must determine whether the board could reasonably arrive at the factual findings and the conclusions of law that form the basis of this appeal. See Finklestein v. Administrator, 192 Conn. 104, 112-13, 470 A.2d 1196 (1984).
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." Conn. Practice Book § 22-9. In such a case, the superior court reviews that decision only to determine if the board’s decision was unreasonable, arbitrary, or illegal. Guevara v. Administrator, 172 Conn. 492, 495-96, 374 A.2d 1101 (1977).
Analysis
I. Acceptance of Findings of Fact
The administrator argues, inter alia, that the board of review’s findings are binding upon the court because Radzuinas did not file a motion to correct the findings with the board of review. The administrator is correct.
Practice Book § 22-4 states, in relevant part, "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 in the superior court, file with the board a motion for the correction of the finding ..." (Emphasis added.) In this matter, Radzuinas did not file a motion to correct findings with the board of review. It is noted that the record reflects that Radzuinas, a self-represented party, received minimal instruction from the board with its decision to file such a motion if the facts were disputed. Record, pp. 56, 58.
The "notice of appeal rights" form BR-17 (1/10), sent with the decisions of the employment security appeals division’s board of review, contains the following language in small print at the bottom of the page: "If a party who files an appeal to the Superior Court wishes to dispute the Board’s findings of fact, it has to file a Motion to Correct Findings. Procedures for filing such a motion are set forth in Chapter 22 of the Connecticut Practice Book."
In Shah v. Administrator, Unemployment Compensation Act et al., 114 Conn.App. 170, 968 A.2d 971 (2009), the plaintiff failed to file a motion for correction with the board of review as required by Practice Book § 22-4. Rather, she filed a motion with the court to open the decision of the board. The trial court found that, in so doing, the plaintiff complied with the requirement of Practice Book § 22-4. The Appellate Court disagreed. Citing the Appellate Court case of Calnan v. Administrator, Unemployment Compensation Act, 43 Conn.App. 779, 785, 686 A.2d 134 (1996), the court in Shah stated that, absent the prerequisite filing of a motion for correction with the board of review, the plaintiff cannot challenge the board’s findings on appeal. Shah, 114 Conn.App. at 175. The court further cited the Supreme Court case of JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422, 828 A.2d 609 (2003), for the holding that the plaintiff’s failure to file a timely motion to correct the board’s findings in accordance with Practice Book § 22-4 prevents further review of those facts found by the board. Shah, 114 Conn.App. at 176.
The plaintiff [Radzuinas] contests the findings of fact in her brief. However, she has not complied with Practice Book § 22-4 and, therefore, this court is not entitled to entertain any challenge to the findings. Even if those findings were subject to review, the board’s basis for denial of benefits cannot be reviewed by this court because the plaintiff failed to comply with Practice Book § 22-4 and there is no decision of the board on a motion to correct, pursuant to Practice Book § 22-7, to consider.
II. Consideration of Board’s Decision Based on Findings of Fact
General Statutes § 31-236(a)(2)(B) provides for disqualification of benefits for "willful misconduct in the course of the individual’s employment." "Willful misconduct" is defined as "deliberate misconduct in willful 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 ..." General Statutes § 31-236(a)(16).
In this matter, the board adopted some of the referee’s findings of fact and added its own.
The court’s review is limited to a determination of whether the board’s decision based upon the findings of fact was unreasonable, arbitrary or illegal. Guevara v. Administrator, 172 Conn. 495-96. There is no finding of fact to support Plaintiff’s contention that the conduct did not occur. The board’s decision is in accordance with General Statutes § 31-236(a)(2)(B). There is a reasonable basis for the board’s decision upon the facts found. There is no evidence upon which the court can find that the board’s decision was unreasonable, arbitrary or illegal and the court can go no further because plaintiff failed to file a motion to correct findings pursuant to Practice Book § 22-4.
Conclusion
The plaintiff’s appeal is dismissed.
Our appellate courts have consistently held that the absence of a motion to correct requires the trial court to accept the board’s findings of fact. See, e.g., Shah v. Administrator, Unemployment Compensation Act et al., 114 Conn.App. 170, 175, 968 A.2d 971 (2009). The notice does not state what the "Connecticut Practice Book" is or where a party might access one, nor does the board clearly state that the motion to correct must be filed with the board, not the court. The only relevant sections of Chapter 22 as to motions to correct are contained in Practice Book § § 22-4-22-6.
In this court’s experience, most self-represented parties are unaware and inadequately informed of this procedural pitfall, the effect of which severely curtails the court’s review and makes the chance of success in an appeal much more unlikely. The cryptic notice is unlike all of the otherwise clear and exemplary instructions of the employment security division of the Department of Labor which claimants and employers receive in pursuing and defending an appeal and could be easily remedied by the board by setting forth the requirements of Practice Book § § 22-4-22-6 within the body of the notice.
Two years ago, this court raised this issue in a memorandum of decision (DeLucia v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Britain, Docket No. HHB CV13-5015885S (Dec. 6, 2013) (2014 Ct.Sup. 85)). To date, the board has not changed its notice. While the board is not bound by this court’s dictum, the court continues to advocate that the board level the playing field for self-represented parties by augmenting its notice.