Opinion
No. NNH CV10-5033500 S
October 6, 2011
MEMORANDUM OF DECISION
PROCEDURAL HISTORY:
The plaintiff was terminated for willful violation of her employer's policies on August 27, 2009 due to excessive tardiness. The plaintiff's application for unemployment benefits was denied on September 21, 2009 by the administrator who found the plaintiff continued to be tardy after receiving a final warning from the employer. Upon appeal, a hearing was scheduled with an appeals referee. Although the employer was present, the plaintiff failed to appear on time. Therefore, the referee reviewed the record and based upon that review, affirmed the ruling of the administrator.
The plaintiff timely moved to reopen the dismissal and after a hearing on December 2, 2009, the appeals referee made findings of fact, and found a disqualifying pattern of tardiness which constituted wilful misconduct pursuant to General Statutes § 31-236(a)(2)(B). The referee affirmed the administrator's ruling and dismissed the appeal in a decision dated December 23, 2009.
The plaintiff filed a timely appeal of the referee's decision to the board of review which adopted the findings of the referee, added language to one of the findings and affirmed his decision on March 22, 2010. The plaintiff next appealed to the superior court. She did not file a motion to correct findings with the board of review. The plaintiff did file a brief with the court (102.00). The defendant, Administrator, Unemployment Compensation Act [Administrator], filed a memorandum of law in opposition to the appeal (103.00). A hearing was conducted by the court on October 3, 2011.
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, 112-113, 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:
The defendant, Administrator, Unemployment Compensation Act [Administrator], argues, inter alia, that the board of review's findings are binding upon the court because the plaintiff did not file a motion to correct the findings with the board of review. The defendant 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, the plaintiff did not file a motion to correct findings with the board of review.
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 P.B. § 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 P.B. § 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 for correction of the board's findings in accordance with P.B. § 22-4 prevents further review of those facts found by the board. Shah, 114 Conn.App. at 176.
The plaintiff has not complied with P.B. § 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 because of deliberate misconduct cannot be reviewed by this court because the appellant failed to comply with P.B. § 22-4 and there is no decision of the board on a motion for correction, pursuant to P.B. § 22-7, to consider.
Even if the motion for correction was correctly filed with the board of review, the plaintiff's assertions are the same assertions she has made throughout her appeal process. The plaintiff disagrees with the findings of facts of the referee and board of review. However, this court cannot retry the matter. There is nothing in the findings of the board of review which would lead this court to believe the board's decision was unreasonable, arbitrary, or illegal, Guevara, supra, nor has the plaintiff alleged, this.
CONCLUSION:
The plaintiff's appeal is dismissed.