Opinion
CV175039014S
08-01-2018
Brandon SCRADERS v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT et al.
UNPUBLISHED OPINION
OPINION
Wilson, J.
This is a statutory appeal from a decision of the Employment Security Board of Review affirming the dismissal of a claim for unemployment benefits. The claimant is Brandon Scraders (plaintiff), who was employed by Goodwill of Western & Northern Connecticut, Inc. (Goodwill) from April 17, 2016, through October 13, 2016. At the time his employment ended, Scraders was a full-time store processor. On February 2, 2017, his claim was denied by the Administrator on the ground that Scraders "left his job for personal reasons. [He] found another job [and he] failed to prove good cause for leaving which was attributable to the employer." Record, p. 10. The Administrator determined that the plaintiff voluntarily left suitable employment without good cause attributable to his employer. The plaintiff timely appealed the Administrator’s determination to the Middletown office of the appeals division on February 8, 2017. The appeals division scheduled a hearing of the appeal for March 7, 2017, to which the plaintiff did not appear. By a decision issued on March 7, 2017, the appeals referee dismissed the plaintiff’s appeal for failure to attend the scheduled hearing and resulting failure to prosecute the appeal.
The record demonstrates that on March 8, 2017, a day after the scheduled hearing, the plaintiff contacted the appeals division and "advised that he missed the hearing because he was waiting for someone to call him. He spoke to someone in Waterbury Appeals who instructed him the day following his hearing that he was supposed to call Middletown to request telephonic participation." Id., p. 48. The following day, on March 9, 2017, and only two days after the referee’s dismissal of the plaintiff’s appeal, the plaintiff filed a motion to reopen the referee’s decision. In his motion to reopen, the plaintiff explained that he "was misinformed by the Bridgeport unemployment office ... [He] was told to expect a call for [his] hearing and was not aware of the number to register ..." Id., p. 22. On March 16, 2017, the appeals referee conditionally granted the motion to reopen and withdrew his decision. The appeals division scheduled a new hearing for April 27, 2017, to which the plaintiff and employer attended. On April 27, 2017, the appeals referee denied the plaintiff’s motion to reopen and reinstated his March 7, 2017 decision.
The referee concluded that the plaintiff did not have good cause for failing to attend the original referee’s hearing scheduled for March 7, 2017. The referee concluded that "[t]he board of review has consistently ruled that a party has not demonstrated good faith error where it has not acted diligently in contacting the appeals division within a reasonable period after the hearing." Record, p. 33. Citing precedent, the referee concluded that the "[plaintiff’s] failure to contact the appeals division at all on the day of the hearing, when he did not receive the call he expected, constitutes a lack of diligence [and] [u]nder these circumstances ... the [plaintiff] ... failed to show good cause for failing to attend the original referee’s hearing scheduled for March 7, 2017." (Emphasis added.) Id. The decision contains no discussion of the merits of the underlying denial of benefits.
The plaintiff filed a timely appeal of the referee’s denial of the motion to reopen to the board of review on May 4, 2017. Acting under its authority contained in General Statutes § 31-249, the board reviewed the documentary record on appeal and listened to the recording of the hearing held before the referee. The board’s decision, issued on July 5, 2017, reflects that the board conducted its own internal investigation regarding plaintiff’s "diligence" by supplementing the record with a copy of the administrator’s electronic message screen and a copy of the record of contact made by the plaintiff on March 8, 2017. According to this supplemental record, the board determined that there was no record to corroborate the plaintiff’s claim that he spoke to a representative at any time prior to the March 7, 2017 hearing, and that there was record of contact on March 8, 2017, the day after the referee’s hearing. Notwithstanding plaintiff’s record of contact with the appeals division on March 8, 2017 advising it that "he missed the hearing because he was waiting for someone to call him," the board concluded that the plaintiff did not exercise diligence, and thus he failed to demonstrate good cause for his nonappearance at the March 7, 2017 hearing.
General Statutes § 31-249 provides: "At any time before the referee’s decision has become final within the periods of limitation prescribed in section 31-248, any party, including the administrator, may appeal therefrom to the board. Such appeal shall be filed in a manner prescribed by the appeals division and may be heard in any local office of the Employment Security Division or, in the case of an interstate claim, in the office in which the claim was filed, or in the office of the appeals referee or the board of review. Such appeal to the board may be heard on the record of the hearing before the referee or the board may hear additional evidence or testimony, provided the board shall determine what evidence shall be heard in the appeal established in accordance with the standards and criteria in regulations adopted pursuant to section 31-237g. The board may remand the case to a referee for such further proceedings as it may direct. Upon the final determination of the appeal by the board, it shall issue its decision, affirming, modifying or reversing the decision of the referee. The board shall state in each decision whether or not it was based on the record of the hearing before the referees, the reasons for the decision and the citations of any precedents used to support it. In any case in which the board modifies the referee’s findings of fact or conclusions of law, the board’s decision shall include its findings of fact and conclusions of law."
The facts in the present case are almost identical to a recent decision issued by Judge Ecker, now Associate Supreme Court Justice, in Cousins v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Haven, Docket No. CV-17-5038021 (December 28, 2017, Ecker, J.) , which this court finds instructive and worth noting, because of its thorough review and description of the appeals division process. In Cousins, like the plaintiff here, the plaintiff, Cousins failed to appear for his appeal hearing before the appeals referee. A notice of hearing was issued which scheduled a hearing for Cousins’ appeal to be held by telephone at 9:30 a.m., Monday, October 17, 2016. The notice contained a call-in number which instructed Cousins to call 15 minutes prior to the scheduled time. Cousins misunderstood the procedure, and did not call the appeals referee on October 17, 2016. Consequently, the appeal was automatically dismissed based on the appeals division’s general practice of denying all appeals following an applicant’s failure to attend a scheduled hearing unless a request to open is made on the same day as the scheduled hearing. Two days later, on October 19, 2016, Cousins moved to reopen the appeal on the ground that he did not realize he was supposed to place the call initiating the hearing. The motion was denied and Cousins timely appealed the denial to the board of review which affirmed the denial to reopen, also on procedural grounds.
With respect to the harsh result in Cousins, Judge Ecker, based on the record before him, noted the following: "For a man said to lack ‘diligence’ prosecuting his appeal rights, Calvin Cousins has been remarkably diligent, one could say, over the past eighteen months in his ongoing efforts to vindicate those rights. Cousins filed a timely claim for benefits; he timely appealed the Administrator’s denial of benefits; after missing the scheduled telephonic hearing with Referee Pashos, he timely sought to reopen [his] dismissal order; he personally appeared in Middletown at the appointed time for his rescheduled meeting, and presented his case to Referee Coleman; he timely appealed to the Board from Coleman’s dismissal of the appeal; and he timely appealed to this court from the Board’s dismissal of the appeal. He also appeared in court at the correct time and location to argue this appeal before the undersigned judge. Those efforts are all for naught, however, because Cousins made an honest mistake regarding hearing procedures, and then waited forty-eight hours to inquire about what had gone wrong.
"This seems like a harsh outcome. Cousins is guilty of nothing more than a single scheduling error. This proves he is human. On these facts, however, the oversight does not signify contempt for the system, disrespect for the rules, or anything of the kind; the error was isolated and. singular; it was never repeated, and is not part of a pattern of irresponsible conduct. To the contrary, Cousins acted to correct the mistake in relatively prompt fashion- though evidently not fast enough to satisfy the Board, which requires same-day remediation to warrant clemency. See Board Decision, at 2 (‘[T]he Board generally does not find good cause for the nonappearance where the party fails to call the appeals division on the day of the hearing ...’)." Id.
Judge Ecker ultimately affirmed the board’s decision and dismissed Cousins’ appeal "because the court is powerless, within the law, to give him the second chance that a more forgiving administrative regime would have provided." Id. Like Cousins, Scraders has been remarkably diligent in his ongoing efforts to vindicate and prosecute his appeal rights. Scraders filed a timely claim for benefits; he timely appealed the Administrator’s denial of benefits; after missing his hearing, he made contact with the appeals division on March 8, 2017, only one day after the original March 7, 2017, and explained that he mistakenly believed that he would receive a call from the appeals division; on March 9, 2017, only two days after the March 7, 2017 hearing, he timely sought to reopen the referee’s dismissal order; he personally appeared in Middletown at the appointed time for his rescheduled meeting and presented his case to referee Cutler; he timely appealed to the board from Cutler’s dismissal of the appeal; and he timely appealed to this court from the board’s dismissal of the appeal. Scraders also appeared in court at the correct time and location to argue this appeal before the undersigned judge. As correctly noted by Judge Ecker, "these efforts are all for naught, however, because [Scraders] made an honest mistake regarding hearing procedures, and then waited, [really one day, March 8, 2017] to inquire about what had gone wrong [and only two days, on March 9, 2017, to move to reopen]." Id. However, this court, like the court in Cousins, is powerless, within the law to give Scraders a second chance. "The standard of judicial review under these circumstances is tightly circumscribed: ‘[Unemployment] appeals are heard by the court upon certified copy of the record filed by the board. The court does not 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 the finding should be corrected, or whether there was any evidence to support in law the conclusions reached ... The court’s ultimate duty is to decide only whether, in light of the evidence, the board of review has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. (Internal quotation marks omitted.) Phillips v. Administrator, Unemployment Compensation Act, 157 Conn.App. 342, 350, 115 A.3d 1162 (2015). When considering an appeal from the board, we have stated that [a] 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 ... In the absence of a motion to correct the findings of the board the 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. (Internal quotation marks omitted.) Davis v. Administrator, Unemployment Compensation Act, 155 Conn.App. 259, 262-63, 109 A.3d 540 (2015). Cragg v. Administrator, 160 Conn.App. 430, 436-37 (2015); see also Belica v. Administrator, 126 Conn.App. 779, 785 (2011)." Cousins, supra, Superior Court, Docket No. CV-17-5038021. Here, Scraders did not file a motion to correct, thus, this court’s review is limited to the facts found by the board.
Moreover, "[t]he applicable regulations permit the Referee to dismiss an appeal under these circumstances. Section 31-237g-26(b) of the Regulations of Connecticut State Agencies ... provides the applicable framework for administrative decisionmaking in this context: ‘If the appealing party fails to timely appear at a scheduled hearing, the Referee may, following a review of the existing record: (1) issue a decision dismissing such appeal ... due to the failure of the appealing party to prosecute the appeal, if no error is apparent from the face of the record; or (2) proceed with the hearing and ... take the testimony, evidence and argument put forward by those present, if any, consider the documentary record established by the Administrator, and issue a decision on the merits of the appeal if the Referee determines that good cause exists for doing so. Good cause may include but need not be limited to the following: (A) a non-appealing party present expressly requests to so proceed, provided that in such instance the Referee shall advise the requesting party that in the event that another hearing is scheduled on the case it will be advisable for such party to again appear and participate at such further hearing; (B) the Referee determines, with or without the appearance of any party at the hearing, that the documentary record established by the Administrator does not support the Administrator’s decision appealed from; (C) the appealing party has appeared for the hearing more than 10 minutes past the scheduled starting time but the Referee determines that it will nevertheless be administratively feasible to proceed with the hearing. (3) Reschedule or continue the hearing if the Referee reasonably determines that good cause exists for doing so.’ [Emphasis added.] Under § 31-237g-26(b)(1), the outcome reached by the Referee is expressly permitted by law.
"This is not the end of the inquiry, because there are other results that also could have been reached by the Referee, as sub-sections (2) and (3) of § 31-237g-26(b) make clear, and the court therefore must decide whether the Board’s decision to affirm the Referee’s dismissal, rather than remand the case for consideration on the merits (or itself hold a hearing on the merits, see Regs., Conn. State Agencies § 31-237g-40 and § 31-237g-47), is unreasonable, arbitrary, illegal, or an abuse of discretion. The language of § 31-237g-26(b) dictates that a Referee’s decision in this context turns on his or her determination as to whether, on the facts presented, ‘good cause’ commends a result other than dismissal. [Scraders] can prevail in this forum only if the Board erred when it determined that his failure to attend the hearing was not excused by good cause.
The regulations provide substantial guidance about what is meant by ‘good cause’ excusing the type of procedural infraction at issue here. The portion of Regs., Conn. State Agencies § 31-237g-26(b)(2) quoted above contains three non-exhaustive situations in which good cause may be found. In addition, § 31-237g-26(g) refers the reader to another provision of the regulations for further guidance: ‘For purposes of this section, good cause shall include’ such factors listed in Section 31-237g-15(b) of these regulations as may be relevant to a party’s failure to appear.’ Section 31-237g-15(b) contains detailed standards for determining when late appeals will be allowed for ‘good cause.’
"Good cause may include, but need not be limited to the following: a non-appealing party present expressly requests to so proceed, provided that in such instance the Referee shall advise the requesting party that in the event that another hearing is scheduled on the case it will be advisable for such party to again appear and participate at such further hearing; the Referee determines, with or without the appearance of any party at the hearing, that the documentary record established by the Administrator does not support the Administrator’s decision appealed from; (C) the appealing party has appeared for the hearing more than 10 minutes past the scheduled starting time but the Referee determines that it will nevertheless be administratively feasible to proceed with the hearing." Cousins, supra, Superior Court, Docket No. CV-17-5038021, n.5.
"For purposes of this section, a party has good cause for failing to file an appeal within twenty-one (21) calendar days of the issuance of the Administrator’s determination if a reasonably prudent individual under the same or similar circumstances would have been prevented from filing a timely appeal. In determining whether good cause has been shown, the Referee shall consider all relevant factors, including but not limited to:
"[This] court cannot say that the Board’s finding that [Scraders] lacked ‘good cause’ is arbitrary, unreasonable or an abuse of discretion. The finding is harsh, and unfortunate in this court’s view. But research discloses numerous judicial decisions over the years affirming the dismissal of unemployment claims under comparable scenarios, and the court has not found any case reaching a contrary result, i.e., reversing an administrative decision under similar circumstances. In fact, to be fair to defendants, there are more than a few decisions, rendered in the context of judicial proceedings, that have refused to reverse a trial court’s dismissal of a lawsuit after a litigant (or lawyer) fails to show up for a scheduled court appearance. See e.g., Gionfrido v. Wharf Realty, Inc., 193 Conn. 28 (1984); Questell v. Farogh, 175 Conn.App. 262 (2017). At the risk of painting with too broad a brush, it would seem odd to find the practice of disciplinary dismissal to be unreasonable in the administrative context but reasonable and necessary under comparable circumstances in judicial proceedings.
"See e.g., Pajor v. Administrator, 174 Conn.App. 157, 170-72 (2017) (affirming trial court’s decision dismissing unemployment appeal from administrative dismissal based on failure to appear at hearing); Abdelrouf v. Administrator, No. CV-145035047, 2015 WL 7709420, at *3 (J.D. New Haven, November 5, 2015) (affirming administrative denial of motion to reopen based on finding that appellant did not show good cause for failure to appear at hearing); Wool & Ashton Restaurant Mgmt., Inc. v. Administrator, No. CV-960155886, 1997 WL 781826 (Superior Ct., Dec. 9, 1997) (affirming administrative dismissal of unemployment appeal based on finding that appellant did not show good cause for failure to appear at hearing)." Id., n.7.
"This is not to say that disciplinary dismissals in judicial proceedings are encouraged, or pass muster without scrutiny. Depending on the context, the case law understandably exhibits a significant degree of ambivalence on the subject. On the one hand, the availability of disciplinary dismissal is understood to be an important (if rarely used) cudgel available to trial judges, who must wield sufficiently fearsome authority to compel compliance with the rules of practice and manage burgeoning caseloads. See Gionfrido, supra, 193 Conn. at 32 (‘Caseflow management is based upon the premise that it is the responsibility of the court to establish standards for the processing of cases, and also, when necessary, to enforce compliance with such standards’). The operative principle is simple: ‘Either we adhere to the rules or we do not adhere to the rules. There was no abuse of discretion here where the trial [court] decided to enforce adherence to the rules of practice.’ Farren v. Farren, 142 Conn.App. 145, 153 (2014) (internal quotation marks and citation omitted). On the other hand, appellate cases increasingly recognizes that the severe sanction of dismissal, at least in some procedural contexts, should be administered with great caution and careful attention to proportionality. See, e.g., Millbrook Owners Ass’n., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18 (2001)." Id., n.8. Judge Ecker is correct in observing that there is some ambivalence in the case law on the subject of disciplinary dismissals, however, this court would suggest that the appeals division consider the application of proportionality when deciding whether to dismiss a plaintiff’s appeal on procedural grounds for failing to appear at an appeals hearing. Here, given the contact made by both Scraders and Cousins immediately after their original appeals hearings to which they failed to appear, one and two days after respectively, and their continuous diligent efforts to vindicate their appeal rights, a dismissal in such circumstances clearly does not appear proportional to their respective violations. Moreover, as Judge Ecker points out, and discussed by this court, infra, hearing the plaintiffs’ appeals on the merits would have two significant advantages: (a) less utilization of agency resources and, more importantly would have provided the plaintiffs with a ruling on the merits. ‘Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111, 347 A.2d 53 (1974).’ (Internal quotation marks omitted.) Coppola v. Coppola, 243 Conn. 657, 665-66, 707 A.2d 281 (1998). Therefore, although dismissal of an action is not ‘an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court’s authority ’; Fox v. First Bank, 198 Conn. 34, 39, 501 A.2d 747 (1985); see also Pavlinko v. Yale-New Haven Hospital, supra, 192 Conn. at 145, 470 A.2d 246 (dismissal proper where party’s disobedience intentional, sufficient need for information sought is shown, and disobedient party not inclined to change position); the court ‘should be reluctant to employ the sanction of dismissal except as a last resort.’ Fox v. First Bank, supra, at 39, 501 A.2d 747. ‘[T]he sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of" the other party and the court. Pietraroia v. Northeast Utilities, 254 Conn. 60, 75, 756 A.2d 845 (2000)." (Emphasis added.) Millbrook Owners Ass’n. v. Hamilton Standard, supra, 257 Conn. 1, 16-17, 776 A.2d 1115 (2001).
"Nor is there any evidence suggesting that the Board applied its dismissal rule in an arbitrary fashion. When it comes to non-appearances due to scheduling or other ‘good faith’ mistakes, the Board appears to have drawn a line based on how quickly the defaulting party contacts the Appeals Division to seek clarification or rectification once the error is discovered. See Board Decision, at 2 (‘We have excused a party’s failure to appear at the referee’s hearing as good faith error, where the party made a mistake about the hearing date or time, or failed to report to the correct hearing location, if the party acted diligently as soon as it discovered its error’). A telephone call to the Appeals Division later the same day of the scheduled hearing will serve as a basis to reopen a dismissal and schedule a new hearing, but such efforts any time after the day of the missed hearing will not be excused, absent some justification other than mere good-faith mistake. See Referee’s Decision, at 3 (discussing precedent); Board Decision, at 2 (discussing precedent). Again, this ‘same day’ rule strikes the court as unduly and unnecessarily harsh, but the court’s preference for added leniency does not make the Board’s exercise of discretion unreasonable or arbitrary in this context." Cousins, supra, Superior Court, Docket No. CV-17-5038021. As concluded by Judge Ecker, and for the same reasons articulated in Cousins, likewise, the board’s decision here must be affirmed.
This court also agrees with Judge Ecker’s view that a decision on the merits would have had two significant advantages, namely, less utilization of agency resources, and more importantly, providing the plaintiff with a ruling on the merits. Id.
This court’s ruling is based solely on the board’s procedural ruling regarding the consequences of the plaintiff’s failure to appear. Neither the board’s nor the appeals referee’s decisions address the merits of the underlying denial of benefits, and, as such is not accompanied by any findings of fact, citations to precedent, or reasons addressing the legal and factual claims made in the appeal as required by regulation. See Regs. Conn. State Agencies § 31-237g-48(b); see also
Accordingly, the court concludes that the board’s decision is supported by the evidence and it did not abuse its discretion, act unreasonably or arbitrarily when it affirmed the appeals referee’s decision denying the plaintiff’s motion to reopen. The plaintiff’s appeal is therefore dismissed.
(I) The extent to which the party has demonstrated diligence in its previous dealings with 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 Division, 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." Id., n.6.
Cousins, supra, Superior Court, Docket No. CV-175038021. Regs. Conn. State Agencies § 31-237g-48(b) provides in relevant part: "[E]ach Board decision shall also include: (1) a citation to the law involved; (2) a case history summarizing the proceedings prior to the date of the Board’s decision; (3) a statement indicating whether the Board has reviewed the file record of such appeal; (4) a statement indicating whether the Board reviewed the tape or transcript of the Referee’s hearing prior to issuing the decision; (5) the Board’s decision on all timely filed requests for a Board hearing on such appeal; (6) a statement of the Board’s findings of fact which may adopt the referee’s findings of fact; (7) reasons for the Board’s decision which shall address the legal and factual claims stated in the appeal, timely-filed written argument, and oral argument presented at any hearing before the Board; (8) citations to any specific precedents used to support the decision; (9) the ultimate decision which may include a statement as to the action to be taken by the Administrator, if any, as a consequence of such ultimate decision; (10) the signature, or reproduction thereof, of at least one member of the Board in favor of the decision and the name of each concurring member; (11) a statement that the full board reviewed and decided such appeal if request for decision by the full Board was timely-filed or by statute the full Board was otherwise required to review and decide such appeal."