Opinion
CV155035707S
02-08-2016
Maurice Smith v. Administrator, Unemployment Compensation Act
UNPUBLISHED OPINION
MEMORANDUM OF DECISION STATEMENT OF CASE
Robin L. Wilson, J.
In this case, Maurice Smith, [hereinafter plaintiff] has appealed the decision of the Employment Security Appeals Division Board of Review [hereinafter board] affirming the appeals referee's decision to affirm the Administrator's denial of unemployment benefits. The matter was heard on December 14, 2015. The plaintiff, defendant, administrator and defendant employer, Greater New Haven Transit District appeared. For the reasons stated herein, the plaintiff's appeal is dismissed.
FACTS
The record discloses the following facts. By decision issued on February 19, 2015, the administrator ruled the plaintiff ineligible for unemployment benefits effective January 29, 2015. On February 20, 2015, the plaintiff appealed the administrator's decision to the Middletown office of the appeals division. The appeals division scheduled a hearing on the appeal on March 19, 2015, to which the plaintiff and employer attended. By decision issued on April 13, 2015, the appeals referee affirmed the administrator's ruling.
The plaintiff filed a timely appeal to the board on April 15, 2015. Acting under its authority set forth in General Statutes § 31-249, the board reviewed the record, including the recording of the referee's hearing, and on May 27, 2015, affirmed the referee's decision and dismissed the plaintiff's appeal. On June 1, 2015, pursuant to General Statutes § 31-249b the plaintiff filed a timely appeal to the Superior Court.
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 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."
General Statutes § 31-249b provides in relevant part: " At any time before the board's decision has become final, any party, including the administrator, may appeal such decision, including any claim that the decision violates statutory or constitutional provisions, to the superior court for the judicial district of Hartford or for the judicial district wherein the appellant resides.
The record reveals the following facts. The plaintiff was employed with Greater New Haven Transit District full-time as a driver from September 1, 2000, until he was suspended on January 29, 2015. The plaintiff drove a mini bus for the employer transporting elderly and handicapped individuals. The employer maintained a policy which prevented the use of cellular telephones by drivers while operating the company vehicle. The plaintiff was aware of this policy. The employer maintained the cellular telephone policy to promote safety with its drivers. The employer also maintained a company policy which required drivers to complete accident reports of any accidents a driver has with a company vehicle.
On January 23, 2015, the plaintiff completed an incident report to report damage to the left side of the front bumper of the employer vehicle he drove that day. The plaintiff stated in the report that he noticed a dent in the front bumper of the employer's bus on the driver's side during his post-trip inspection and that he could not recall how the damage occurred. The plaintiff also stated that he was uncertain at what time the incident occurred that caused the damage. On January 23, 2015, Tim Sparks, plaintiff's supervisor, received the incident report completed by the plaintiff, and after reviewing the incident report, Sparks elected to investigate the damage and viewed the surveillance video from the vehicle's camera. The surveillance video revealed that the plaintiff struck a fire hydrant while exiting a passenger's driveway at approximately 3:00 p.m. on January 23, 2015, and the employer's vehicle rocked back and forth as a result of the impact. The plaintiff exited and examined the front of the vehicle. The video surveillance also showed that on January 23, 2015, the plaintiff also picked up and looked at his cell phone on four occasions while he was operating the employer's vehicle, and left his assigned area in order to read a newspaper for twenty minutes.
On January 24, 2015, Sparks questioned the plaintiff concerning what Sparks saw on the video, and the plaintiff denied cellular telephone use and knowledge of what happened with the bumper of the company vehicle. On January 29, 2015, the employer suspended the plaintiff without pay for submitting a false incident report and violation of the policy regarding cellular telephone usage. On February 24, 2015, the employer discharged the plaintiff for multiple violations of policy.
DISCUSSION
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 (199) (1999) quoting Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 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, 551 A.2d 724 (1988).
" 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 165 (1978); Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, (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]ppeals from the board to the Superior Court are specifically exempted from governance by General Statutes § 4-166, et seq., the Uniform Administrative Procedure Act. All appeals from the board to the court are controlled by General Statutes § 31-249b. Section 31-249b specifically provides that any finding of the board 'shall be subject to correction only to the extent provided by section 519 [now § 22-9] of the Connecticut Practice Book . . .' Practice Book § 519(a) specifies that the trial 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 . . . there was any evidence to support in law the conclusion reached. [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of the witnesses . . .' Practice Book § 515A [now § 22-4] provides the mechanism for the correction of the board's findings. If the appellant desires that the findings be corrected, the appellant must, within two weeks of the filing of the record in the Superior Court, file with the board a motion for correction of the findings . . . [A] motion for correction is a necessary prerequisite to a challenge to the board's decision. Because the plaintiff failed to comply with that prerequisite, she could not challenge the board's findings on appeal to the Superior Court." (Citations omitted.) Shah v. Administrator, Unemployment Compensation Act, 114 Conn.App. 170, 175, 968 A.2d 971 (2009).
" Our Supreme Court ratified this precedent in JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422, 828 A.2d 609 (2003), concluding that a plaintiff's 'failure to file a timely motion for correction of the board's findings in accordance with [Practice Book] § 22-4 prevents further review of those facts found by the board . . .'" Shah v. Administrator Unemployment Compensation Act, supra, 114 Conn.App. 176.
The plaintiff in the present case did not file a motion for correction of the board's findings. Therefore, this court's review is limited " to determine, on the record, whether there is a logical and rational basis for the decision of the [board] or whether, in the light of the evidence, [the board] has acted illegally or in abuse of [its] discretion." (Citation omitted; internal quotation marks omitted.) Calnan v. Administrator, Unemployment Compensation Act, 686 A.2d 134, 43 Conn.App. 779 (1996).
The issue before the board was whether the plaintiff was discharged for wilful misconduct in the course of his employment. " General Statutes § 31-236(a)(2)(B) provides in relevant part that " [a]n individual shall be ineligible for benefits . . . if, in the opinion of the administrator, the individual has been discharged . . . for . . . wilful misconduct in the course of the individual's employment . . ." " [W]ilful misconduct means deliberate misconduct in wilful 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 . . . (Internal quotation marks omitted.) 31-236(a)(16); see also Regs., Conn. State Agencies § 31-236-26. Whether the circumstances of an employee's termination constitutes wilful misconduct on the employee's part is a mixed question of law and fact . . .
" To establish that an individual was discharged for deliberate misconduct in wilful disregard of the employer's interest, the board must find that the individual's act or omission constituted misconduct and that such misconduct was done deliberately and in wilful disregard of the employer's interests. Regs., Conn. State Agencies 31-236-26a. 'To find that any actor omission is misconduct, the [board] must find that the individual committed an act or made an omission which was contrary to the employer's interest, including any act or omission which is not consistent with the standards of behavior which an employer, in the operation of his business, should reasonably be able to expect from an employee.' Regs., Conn. State Agencies § 31-236-26a(a). 'To determine that misconduct is deliberate, the [board] must find that the individual committed the act or made the omission intentionally or with reckless indifference for the probable consequences of such act or omission.' Regs., Conn. State Agencies § 31-236-26a(b).
" Finally, '[t]o find that deliberate misconduct is in wilful disregard of the employer's interest, the [board] must find that: (1) the individual knew or should have known that such act or omission was contrary to the employer's expectation or interest; and (2) at the time the individual committed the act or made the omission, he understood that the act or omission was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by mitigating circumstances of a compelling nature. Such circumstances may include: (A) events or conditions which left the individual with no reasonable alternative course of action; or (B) an emergency situation in which a reasonable individual in the same circumstances would commit the same act or make the same omission, despite knowing it was contrary to the employer's expectation or interest.' Regs., Conn. State Agencies § 31-236-26a(c)." Tosado v. Administrator, 130 Conn.App. 266, 275-77, 22 A.3d 675 (2011).
The record upon which the board based its decision which is set forth in the facts above, supports its conclusion that the plaintiff was discharged for wilful misconduct by committing multiple violations of the employer's cellular telephone usage policy. The board also found that the plaintiff " admitted that he periodically held and looked at his cellphone while driving the employer's vehicle on January 23, including while the vehicle was stopped at a stop sign and also while he was waiting to exit a parking lot into traffic . . . Regardless of whether the [plaintiff] was calling, texting or using his cell phone for some other purpose, the employer prohibited the [plaintiff] from using a cell phone while operating its vehicle." Record, p. 56-57. Thus, the board agreed with the referee's determination that the plaintiff knowingly violated the employer's policy.
Moreover, in the alternative, the board found that the plaintiff was suspended for falsifying an incident report. Specifically, the record reveals that, " [a]t the referee's hearing, the [plaintiff] testified he was unaware that he struck a fire hydrant, that he did not feel any impact to the vehicle, that he exited the employer's vehicle only to be sure that a passenger safely reached her house, that he did not recall looking at the vehicle's bumper, and that he was unable to view the damage to the vehicle's bumper from where he was standing outside the vehicle. However, Sparks testified, and the [plaintiff] admitted, that the employer's surveillance video showed the employer's vehicle rocking from side to side after the [plaintiff] struck the fire hydrant. The employer also produced a still photo from its surveillance video which shows the [plaintiff] examining the front of the employer's vehicle, rather than looking at the passenger as he claimed. Based on the employer's credible testimony and documentary evidence, and the plaintiff's inconsistent testimony, [the board] found that the plaintiff was aware that he struck a fire hydrant with the employer's vehicle on January 23." Id. 57-58. Thus, based on this record, the board reasonably concluded that the employer discharged the plaintiff for deliberate misconduct in the course of his employment.
After a thorough review of the certified record, this court concludes that the board's factual findings support the conclusion that the plaintiff engaged in wilful misconduct in the course of his employment. The court therefore concludes that the board's findings are supported by the record, and since the plaintiff failed to file a motion to correct, it is bound by those findings and cannot disturb them. The court further concludes that the board's findings and conclusions were not unreasonable, arbitrary, illegal, or an abuse of discretion.
CONCLUSION
Accordingly, for the foregoing reasons, the plaintiff's appeal is dismissed.