Opinion
CV175040660S
01-31-2019
Mirielle YOASSAINT v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT et al.
UNPUBLISHED OPINION
OPINION
Corradino, Judge
This case involves an appeal to the Superior Court pursuant to § 31-249b of the General Statutes as a result of a denial of unemployment compensation benefits to the plaintiff.
The Administrator, pursuant to Section 31-241 had denied such benefits and the plaintiff appealed the denial pursuant to Section 31-242. Pursuant to this statute a referee conducted a hearing de novo and upheld the Administrator’s decision to deny benefits. The employer did not appear before the referee. The plaintiff appealed the referee’s decision to the Employment Security Division pursuant to Section 31-249 of the General Statutes. The Board adopted the referee’s decision which had affirmed the Administrator’s denial of benefits. From the Board’s decision the plaintiff claimant appealed to the Superior Court pursuant to Section 31-249b of the General Statutes.
The subject of this appeal is the analysis and conclusions by the referee of the claimant’s request for unemployment benefits. The Board held that based on the record the referee had adequately addressed the claimant’s contentions and that the referee’s "findings are supported by the record and that the conclusion reached by the referee is consistent with those findings and the provisions of the Connecticut Unemployment Compensation Act." The Board then adopted the referee’s findings of fact and decision.
The findings and decision of the referee which the Board adopted were set forth in the referee’s decision as follows:
In this case, the record establishes that the employer discharged the claimant from her position because the claimant was unable to keep up with the demands of the job and she refused to attend a meeting as instructed and refused to close two cases as instructed. On June 2, 2017, the claimant knew that she had to attend a meeting that day to discuss outstanding cases because management holds a meeting every other week. The claimant had just returned from an appointment and did not feel like attending the meeting and she told her supervisor that she would not be able to attend. The supervisor repeatedly told the claimant that she needed to attend the meeting and that they all have work to do, but the claimant continued to refuse to attend the meeting. Then the claimant told her supervisor that she should do what she had to do and that she did not care and closed the office door on the supervisor. The employer has the right to instruct the claimant on what work needs to be completed and the claimant herself admitted that she knew she needed to close those two cases because there was a deadline of 45 days. Although the claimant knew as of June 2, 2017, that the employer wanted her to close those two cases, the claimant failed to do so on June 5, June 6, and June 7, 2017, because she felt that other cases were a priority. The employer even took the claimant off the schedule on June 6 to catch up on her work, but she still failed to close those two cases as previously instructed. While this referee understands that the claimant was trying to balance her workload and other obligations, the claimant did not offer any explanation that would justify her continuing refusal to follow the employer’s directive to close those two cases. Also, the claimant’s actions on June 2, 2017, were insubordinate because she continued to tell the supervisor she would not attend the meeting and then she told her that she did not care and closed the door on her supervisor. The employer’s directive to attend the meeting and to close the two cases was reasonable and the claimant had plenty of time to comply with that directive. The claimant failed to establish good cause for refusing to follow that directive. Therefore, record establishes that the employer discharged the claimant for a final act of wilful misconduct as required under Section 31-236(a)(2)(B) of the Connecticut General Statutes.
The court will now try to discuss the general principles that should guide the court in reviewing a decision of the Board of Review. It will then discuss some of the particular legal issues raised by this case.
A
The court will first review the standards that should be applied in reviewing decisions of the Board of Review in deciding matters such as this under the Unemployment Compensation Law and some of the legal issues and considerations which arise in an appeal of the type now before the court.
The standards to be applied by the courts in reviewing decisions of the Board of Review in Unemployment Compensation are set out in Manukyan v. Administrator, 139 Conn.App. 26; 33-35 (2012):
"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. 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 ... [The court] is bound by the findings of subordinate facts and reasonable factual conclusions made by the appeals referee where, as here, the board of review adopted the findings and affirmed the decision of the referee" DaSilva v. Administrator, Unemployment Compensation Act, 175 Conn. 562, 564, 402 A.2d 755 (1978). "If the referee’s conclusions are reasonably and logically drawn, the court cannot alter them." Howell v. Administrator, Unemployment Compensation Act, supra, 174 Conn. at 533, also see Johnson v. Administrator, 3 Conn.App. 264, 267 (1985).
A party’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. JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. at 422. Practice Book § 22-9(9) provides in relevant part: [The court] 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. It cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses.
The court has also held that: "A fact is not proven merely because a claimant testifies to it and no one denies it, for it is the province of the referee as trier of fact to determine the credibility of the witnesses and the weight of the evidence." Howell v. Administrator, Unemployment Compensation Act, 174 Conn. 529, 532 (1978).
On the other hand in Fullerton v. Administrator, Unemployment Compensation Commissioner, 280 Conn. 745, 760-62 (2006), the court in hearing an appeal from the actions of the Administrator in an unemployment compensation case did say, quoting from an earlier opinion:
"[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 the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion."
Also see JSF Promotions, Inc. v. Administrative, Unemployment Compensation Act, 265 Conn. 413, 417 (2003).
In other words as the court said in Finkenstein v. Administrator, 192 Conn. 104, 112 (1984): "The Superior Court does not retry the facts or hear evidence in appeals under our unemployment compensation legislation. Rather, it acts as an appellate court to review the record certified and filed by the board of review."
Further discussion should be made regarding the consequences of a failure to file a motion to correct pursuant to Practice Book Section 22-4. That section reads as follows: "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, unless the time is extended for cause by the board, file with the board a motion for the correction of the finding and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for, certified by the stenographer who took it; but if the appellant claims that substantially all the evidence is relevant and material to the corrections sought, he or she may file all of it, so certified, indicating in the motion so far as possible the portion applicable to each correction sought." The board shall forthwith upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.
Pro se litigants are not exempt from compliance with the provisions of Practice Book Section 22-4, Tosado v. Administrator, 130 Conn.App. 266, 275 (2011) Horton and Knox in Volume 1 pg. 981-83 of the Connecticut Practice Series state as noted above that failure to file a motion to correct prevents the court from further review of those facts formed by the Board further citing Reeder v. Administrator, 88 Conn.App. 556, 558 (2005) and Manukyan v. Administrator, 139 Conn.App. 26, 34 (2012). As said by Horton and Knox at page 982 "The motion to correct is no mere technical requirement. If it is claimed that the finding is in some way incorrect, this should be first called to the attention of the Board in order that it may have an opportunity to supply the omitted facts or restate the findings in view of the claims being made in the motion.
B
Turning to the specific legal issues raised by this case, the court will first discuss the concept of wilful misconduct, the basis of the plaintiff’s termination, under state statutes and state agency regulations. Then it will discuss other legal issues relevant to this case.
(1)
Section 31-236(a)(2)(B) of the General Statutes provides that a person shall be ineligible for benefits as stated in subsection (2)(B) if "in the opinion of the administrator the individual has been discharged or suspended for ..."wilful misconduct in the course of the individual’s employment ..." Section 31-236(2)(A)(16) defines wilful misconduct saying that it "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 provided its not the result of incompetence." (emphasis by court).
There is a dichotomy in the statutory definition of "wilful misconduct"— see underlined "or" in above quotation of subsection (16). These separate ways of defining wilful misconduct are reflected in the State Agency Regulations. Section 31-236-26(a) of the regulations defines "deliberate misconduct" while Section 31-236-26b discusses the statutory language of a violation of a uniformly enforced rule or policy.
Section 31-236-26(a) defines Deliberate Misconduct as follows:
In order to establish that an individual was discharged or suspended for deliberate misconduct in wilful disregard of the employer’s interest, the Administrator must find all of the following:
(a) Misconduct. To find that any act or omission is misconduct the Administrator 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.
(b) Deliberate. To determine that misconduct is deliberate, the Administrator 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.
(c) Wilful Disregard of the Employer’s Interest. To find that deliberate misconduct is in wilful disregard of the employer’s interest, the Administrator must find that:
(1) the individual knew or should have known that such act or omission was contrary to the employee’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.
Section 31-236-26(b) of the State Agency Regulations which discusses the second definition of "wilful misconduct" in section (16) of Section 31-236(2)(A) of the General Statutes says that any violation of a rule or policy must be knowing, reasonable in light of the employer’s business interests, reasonably applied, and not the result of incompetence. Subsection (e) goes on to say violation of the rule must be uniformly enforced— i.e. the Administrator must find that similarly situated employees, subject to the work place rule or policy, are treated in a similar manner when a rule or policy is violated." Statutes and agency regulations govern how these cases are treated.
In deciding issues of wilful misconduct the Appellate and trial courts invariably quote the statutory language defining wilful misconduct and then turn to the State Regulations defining the concept, see for example Resso v. Administrator, Unemployment Compensation Act, 147 Conn.App. 661 665-68 (2014), Tosado v. Administrator, Unemployment Compensation Act, 130 Conn.App. 266, 275-77 (2011), Jiminez v. Administrator, Unemployment Compensation Act, 2018 WL 2047725 (Wilson, J.); Companions & Homemakers, Inc. v. Administrator, Unemployment Compensation Act, 2016 WL 3179870 (Tanzer, J.).
As said in the Resso case, quoting from the earlier case of Canterbury v. Commissioner of Environmental Protection, 62 Conn.App. 816, 819 (2001) "Valid agency regulations have the force of statutes and constitute state law." And it also true as Resso said quoting from Fullerton v. Dept. of Revenue Services, 245 Conn. 601, 612 (1998): "When interpreting a regulation (a court) must use common sense," see Resso at 147 Conn.App. pp. 667-68 for both these observations.
Some general legal principles applied to unemployment compensation cases must also be discussed.
Regarding the appropriate standards to apply in interpreting the statutes providing for unemployment compensation and the regulations meant to enforce statutory policy including such concepts as "wilful misconduct" the language of DaSilva v. Administrator, Unemployment Compensation Act, 175 Conn. 562 (1978) must be kept in mind. The case at page 569 said: "the purpose of the Unemployment Compensation Act is to provide some income for the worker earning nothing because he (sic) is out of work through no fault of his (sic) own ... Since the purpose of the act is clearly remedial in character, it is to be liberally construed in order to accomplish its humanitarian purpose," see also Ertman v. Fusari, 447 F.Supp. 1147, 1149 (D.Conn. 1977).
But as noted in United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 388 (1988): "we agree that the remedial purpose of the Unemployment Compensation Act is to provide relief for its primary beneficiaries, those who are unemployed without fault or for cause ... but this remedial beneficial purpose does not support the granting of benefits to an employee guilty of wilful misconduct."
Finally, as Judge Karazin noted in Alexander v. Administrator, Unemployment Compensation Act, et al., 2015 WL 6405742 he agreed with the Board’s position that the burden is on the employer to prove wilful misconduct. But "the employer must provide a specific and detailed description of the alleged act of misconduct ..."
(2)
Another general issue discussed in the cases is presented by the fact that in this case the employer did not appear before the referee and the referee appears to rely on a statement from the employer setting forth its reasons for discharging the claimant, which appears at page 11 in the record.
The Phillips case, however, said that in the case it was addressing: "the board acknowledged that firsthand testimony generally is more reliable and deserving of greater weight than hearsay evidence. A referee, however may not elevate firsthand testimony that is not credible over reliable hearsay evidence," 157 Conn.App. at page 347. Judge Karazin in Armetta v. Administrator, 2015 WL 6684763, citing Addona v. Administrator, 121 Conn.App. 355, 363 (2010) said that: "Hearsay evidence is admissible in unemployment hearings. The hearsay rule is geared to protect inadmissible evidence from entering into the hearing. Once it is allowed in, it becomes a function of determining the weight of that evidence." In the Addona case the court expanded on the problem of hearsay evidence in the context of a situation where the employer or managers did not testify. In Addona the claimant was fired for wilful misconduct under § 31-236(a)(2)(B) by Sargent Manufacturing Company because of two incidents involving verbal tirades with other employees. The court’s comments in Addona at 121 Conn.App. pages 363-64 have relevance to the issues before the court in this case. The court said as follows:
"In the present case, none of the employees present for the verbal conflicts involving the plaintiff testified either in person or by telephone. Only Fasulo and Tantimonico appeared for the two hearings, and neither was present during either incident on March 9, 2007. The referee found that "[s]everal employees informed ... Tantimonico that they felt uncomfortable about the [p]aintiff’s] anger and use of profanity." The plaintiff was unable to cross examine these coworkers and those involved in the verbal confrontation. We also note that the referee’s written decision states: "In this case [Sargent] presented largely hearsay testimony."
"Even if we assume, arguendo, that the plaintiff was denied due process by the admission of and reliance on unreliable hearsay evidence, we conclude that he did not suffer material prejudice as a result. The plaintiff himself testified that he engaged in a second confrontation after the initial incident. The referee found that it was that conduct that formed the basis for his conclusion that the plaintiff had engaged in wilful misconduct," and thus resulted in the plaintiff’s ineligibility to receive unemployment compensation benefits pursuant to § 31-236(a)(2)(B). In other words, there was other evidence, namely, the plaintiff’s own testimony, apart from the hearsay evidence on which the referee found wilful misconduct. We conclude, therefore, that the plaintiff was not harmed by the referee’s consideration of the hearsay evidence presented by Sargent."
The Addona court reversed the judgment of the trial court as to the clamant’s due process claim and remanded the case to the trial court for consideration of the plaintiff’s remaining claims which challenged the denial of his claim for worker compensation benefits.
The court will now try to apply the foregoing principles in deciding this appeal. To set the discussion in context the court must ascertain the statutory and regulatory basis for the decision of the referee which was upheld by the Board.
C
The court concludes the referee based his decision denying benefits on the first part of the definition set forth in subsection (16) of section 31-236(2)(A) of the General Statutes, which talks of deliberate misconduct which is further defined in § 31-236-26a of the State Agency Regulations.
The referee notes the claimant was repeatedly told by her supervisor to attend a meeting on June 2, 2017 held bi-weekly for employees to discuss outstanding cases and her refusal to do so and failure to close out two cases she was told must be closed out. The last two sentences of the analysis and conclusion section state: "The employer’s directive to attend the meeting and to close the two cases was reasonable and the plaintiff had plenty of time to comply with that directive. The claimant failed to establish good cause for refusing to follow that directive. Therefore, the record establishes that the employer discharged the claimant for a final act of wilful misconduct as required under Section 31-236(a)(2)(B) of the Connecticut General Statutes."
It is true that the omissions and misconduct arose out of the employer’s concern that the claimant might not comply with the rule imposed on clinicians to close out their cases in 45 days and that there was a policy of holding bi-weekly meetings to discuss caseloads. But the discharge itself did not arise out of violation of the 45-day rule itself or even failure to attend the meeting but about the manner of refusal to attend the meeting and that the employer’s close out order was reasonable in light of the circumstances of this case, as will be discussed, even though the requests were made before the 45-day period had expired.
In other words, the claimant refused to attend the meeting to discuss her caseload but that, standing alone, did not lead to the termination. She was not actually terminated for six days while repeated requests were made by her supervisor to close out two cases. She was even given a day off to catch up on her work according to the referee’s analysis and conclusion and a decision was made to terminate the claimant before the 45-day rule for closing out cases had expired. The termination in the referee’s decision resulted from her refusal to attend the June 2, 2017 meeting coupled with her failure to close out the two cases in question despite repeated requests to do so.
(2)
The question then before the court is whether the termination of the plaintiff’s employment, given the facts in the record and the referee’s reasoning, meet the requirements of the state statute defining "wilful misconduct" section 31-236-26(a) defining "Deliberate Misconduct" and the case law discussing that concept and whether the termination complied with State Agency Regulations previously set forth defining Deliberate Misconduct (§ 31-236-26(a)).
The court in Tosado v. Administrator, Unemployment Compensation Act, 130 Conn.App.2d. 266 (2011) the court, in effect, held that for a finding of deliberate misconduct "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," Id., p. 276.
The court has previously set forth that regulation and its introductory paragraph states all of the following factors must be found to establish that an individual was fired for deliberate misconduct in wilful disregard of the employer’s interests. The regulation lists three categories (1) misconduct (2) the misconduct was deliberate and (3) the deliberate misconduct is in wilful disregard of the employer’s interests. The Tosado court reviewed the certified record and found that each of the regulations requirements for deliberate misconduct was met as found by the Board and the claimant was therefore not entitled to benefits, Id., pp. 276-78. The court will now discuss each of the three elements referred to and whether their requirements have been met justifying the referee’s and Board’s decision denying benefits.
(a)
Misconduct
The acts or omissions at issue in this case are the plaintiff’s failure to attend a meeting on Friday, June 2, 2017, where her caseload was to be discussed and her failure to close out two cases she could have closed out if she chose to do so.
The definition of misconduct in section (a) of the regulation defining deliberate misconduct refers to an act or omission 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 conduct of (its) business, should reasonably be able to expect from an employee."
The referee found that the claimant knew she had a bi-weekly meeting with management to discuss her cases. She told her supervisor she was unable to do so because she had to have lunch and other work to do. She was repeatedly asked to attend the meeting but the plaintiff told her supervisor she should do what she had to do in light of her refusal to attend the meeting and she did not care.
Also her cases included two cases which the supervisor repeatedly asked her to close out since the employer only had a 45-day requirement for closing out cases. The plaintiff did not close out the two cases.
The record supports the referee’s findings of misconduct. The plaintiff worked as a clinician in The Family Child and Family Guidance Center which involved giving "quality care to the family and children served in crisis," according to a statement she submitted for the referee’s consideration. (page 31 of record). She knew there was a requirement to close out cases capable of being closed in the 45-day period (page 33 of record).
The regulations, in subsection (a) defining misconduct, provide that the terminated employee "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 (its) business, should reasonably be able to expect from an employee."
The court requested that a transcript of the hearing before the referee be submitted and this was done on October 5, 2018 and made part of the record. The plaintiff during the hearing made quite clear why the close out of a file is an important aspect of her employer’s business— the business of providing assistance to families in crisis. Ms. Yoassaint was a clinician assisting these families. When she closed out a file she would have to make sure the family had followup for the family and child. She would have to confirm the act of closing out a file that the family had a mental health provider upon the close out so they could be safely discharged. The employer set a 45-day requirement for closing out a file, no explanation was provided why 45 days was the close out time but an employer can set the limits within which work had to be done and the act of closing out a case included the assurance a family and child had post close out mental health assistance.
(b)
Deliberate
Subsection (b) of the State Regulation defining the prerequisites for a finding deliberate misconduct is that it must be found that the claimant acted deliberately— he or she did the questioned act or made the omission to do a required act intentionally. This requirement is inextricably bound up with a misconduct finding under subsection (a).
The referee’s findings that the plaintiff did not close the two cases out on June 6 or 7, 2017 because she was working on other cases she felt were a priority is established by her own testimony before the referee. Similarly, her finding that she could have closed these cases out if she had wished to do so is also based in Ms. Yoassaint’s testimony. She testified she had other cases she had to attend to and as to the two cases in question she testified ..."it was all a matter of putting in the paperwork. I had notes to document what had already happened I just didn’t get them out of the computer system."
Her deliberate misconduct can be said to be underlined by the fact that she did not comply with the employer’s repeated instructions as to closing out these two cases; she had her own priorities, (see findings 10, 11). All of this is further underlined by the fact that she did not attend a meeting on June 2, 2017 "to discuss her outstanding cases"— a meeting where she could have discussed her "dilemma" about any other cases she was working on.
Despite repeated requests then over several days she did not close out the two cases before her termination on June 8 which is apparently the 45th day for closing the cases.
It is true that the word "deliberate" as used in the regulation, thus must be given its ordinary and common sense meaning. Thus in an earlier case, A.C. Gilbert Co. v. Kordorsky, 134 Conn. 209, 211 (1947) the court said: "Whether the conclusion that (a party) was guilty of wilful misconduct was warranted depends upon his conduct, detailed in the finding and contrary to the (employer’s) rules, could reasonably be held to amount to a deliberate violation of those rules; if by direct proof or as an inference from the circumstances, it appears that the acts were the result of thoughtlessness or inadvertence, the breach cannot be held to have been wilful." Also see comment by Judge Longo in Langlois v. Administrator, Unemployment Compensation, 24 Conn.Supp. 177 (1963) at page 179: ..." mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, or ordinary negligence in isolated instances or good faith errors of judgment or discretion are not to be deemed misconduct within the meaning of the statute," also see 76 Am.Jur.2d "Unemployment Compensation," § 76.
The plaintiff however, cannot rely on the foregoing observations. As the referee found she could have closed out these two files. The repeated instruction from her supervisor to close out the files did not require any discretion on her part; they were simple and direct. The referee’s findings indicate she simply chose to ignore these easily understood directives. She was not in a situation where she was left adrift to make a decision about the files amid a host of other responsibilities. Also it is true that the plaintiff claimed she did not get any support and was not trained. Apart from these generalities, as to the two matters leading to her discharge, failure to attend the June 2, 2017 meeting to discuss her caseload and failure to close out the two cases cannot be explained away by such an argument. Lack of training or competency was not the problem. She admitted she had all the information necessary to close out the files and she did not attend the June 2, 2017 meeting simply because she had her own priorities concerning which files she should address despite the employer’s directives. The employer had the right to determine priorities and lack of training, competence or any other confusion about her job responsibilities cannot be used as a cloak to cover over or explain away failure to follow a simple direction.
(C)
Wilful Disregard of Employer’s Interests
Subsection (c) of the State Regulations is entitled "Wilful Disregard of the Employer’s interest" sub-paragraph (1) then says "(1) the individual knew or should have known that such act or omission was contrary to the employer’s expectations or interests." At the risk of being repetitive, her supervisor made clear to her that the employer, expected, wanted, and was demanding she close out the two cases in question and Ms. Yoassaint did not do so when she had the ability to, see referee’s findings 7, 8, 10, 11, 12.
The second part of the subsection (c) factors that the Administrator must find (or a referee upholding the denial of benefits) is that there were no mitigating circumstances because the employee had no reasonable alternative course of action but to act or fail to act regarding the employer’s expectations or an emergency situation was involved so that any employee in the claimant’s position would have similarly acted or failed to act in a way contrary to the employer’s expectations.
Again, the plaintiff’s own testimony contradicts the viability of such a claim on the plaintiff’s part. The referee’s findings implicitly recognize this. The plaintiff testified that on the day she was to go to the June 2, 2017 meeting, she told her supervisor she was working on other cases. The referee asked what did your supervisor say when you told her that— the transcript indicates the following response: "Ms. Yoassaint; I don’t remember." Yet the supervisor continued to ask over several days to close out the two cases in question. Hardly a situation where it could be said she had no reasonable alternative since the employer in this situation would determine alternatives and reasonableness and as noted she had the ability to closeout the cases. This is especially true in a situation where on the day Ms. Yoassaint was supposed to go to the meeting she talked to her supervisor about her caseload who still requested the two cases be closed over a period of days.
The referee’s findings are based not only on the facts in this case set out in submission by the employer and the plaintiff in the record, but also on the plaintiff’s testimony at the hearing before the referee which was made part of the record. Therefore, wilful misconduct is established in this case.
D
The court must discuss other factors in this case based on evidence introduced by the plaintiff and not directly rebutted by the referee’s findings but which possibly can be characterized as challenging a finding of wilful misconduct. As said in the Fullerton case supra, although a reviewing court is bound by the referee’s findings its "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 discretion," 280 Conn. Pages 760-62.
(1)
In the record and the hearing before the referee, the plaintiff suggests that she was not fired for wilful misconduct, which she denies in any event, but was harassed and bullied for not closing out the two cases in question. Also she takes the position that, from her perspective going to the meeting to discuss her caseload and these two cases would have been a waste of time. Other clinicians were not harassed about meeting the 45-day deadline for closing out cases when there were still a few days to meet it. But her employer, the referee, the claimant herself point to the fact that she was overwhelmed by the job and had difficulties in doing it. Thus, the employer had good reason to single her out and repeatedly ask her how she was doing on closing out the two cases. Also this only underlines the importance of the 45-day close out deadline to the employer creating a need for questioning Ms. Yoassaint about complying with the deadline and having her attend a meeting to discuss her caseload and closing out the two files. She was even taken off schedule two days before her termination to catchup on her work but as the referee noted she failed to close out the cases on June 6 or June 7, 2017. There is no indication the claimant had done so by June 8, which was the day the 45-day period ran out and the date on which she was terminated.
(2)
There is one aspect of the hearing process in these cases that is troubling, at least to the court. A large percentage of the people appealing denial of compensation are unrepresented. The loss of their job and denial of benefits makes it difficult for them to even consider the possibility of hiring a lawyer. Yet the act is styled as ameliorative in purpose. No provision in the statutes requires lawyers to be appointed for claimants or even access to lawyers for consultation on their cases or positions they might consider advancing.
Also as noted case law suggests hearsay submissions by employers can be relied upon. What about the rights of a claimant to subpoena employers and co-workers to contest hearsay assertions. Nothing in the "Essential Information" document part of the record and apparently given to claimant before the hearing before the referee informs them that they have a specific right to subpoena witnesses for the hearing. All this document says under a checklist section is, if it is relevant to a claimant’s case the "following" information should be brought to the hearing. "Anyone who witnessed the actual event(s) which caused or contributed to your separation, or has personal knowledge of any other facts related to your separation." The ‘Telephone Instructions’ section on page 25 says "3 If you have witnesses who wish to testify on your behalf, you must notify the referee’s office immediately upon receipt of your hearing notice so that appropriate arrangements may be made and your request for witnesses can be addressed."
At the bottom of the Essential Information document sent to claimants, there is an on-line site at www.ctboard.org which advises claimants that if they want additional information to prepare for the hearing before the referee they can go to that site reference. The court pulled up a document on that site which in small print at the bottom of page four states the following:
Q. What if I need to subpoena a witness?
A. If you have an attorney that person should issue any necessary subpoenas. If not notify the Appeals Division immediately. The Referee will determine whether a subpoena is necessary and, if so, arrange for it to be served.
It is true that the employer did not attend the hearing before the referee. But as in Addona v. Administrator, supra, it is difficult to conclude that the claimant was denied due process by the fact that the referee relied solely on hearsay assertions by the employer in reaching her conclusion. As the foregoing discussion indicates the claimant’s own testimony before the referee and the position she adopted establish wilful misconduct as statutorily defined and any due process position based on reliance on hearsay does not establish that any prejudice resulted from reliance on hearsay.
It is also the case that section 31-273g-30 of the regulations of the Department of Labor dealing with disputed matters in Unemployment Compensation cases specifically says: "When a party is not represented by an attorney, the Referee shall, as he (sic) deems necessary in the interest of justice, advise such party as to his (sic) rights, aid him (sic) in examining and cross examining witnesses, help him (sic) in presenting evidence and otherwise render such assistance as is compatible with the impartial discharge of the referee’s duties" (emphasis by court).
The record is silent as to whether the referee in this case took any of the steps referred to in the regulation. But as discussed, given the claimant’s admissions that she knew of the 45-day rule, did not close out the cases even though she could have done so, refused even to attend a meeting prior to her termination about her handling of her caseload and the closing of these two cases, it cannot be said that lack of information about and appropriate access to the ability to issue subpoenas, lack of any assistance by the referee or access to legal representation resulted in the unfair denial of her right to unemployment compensation or invalidation of a finding of wilful misconduct.
For all the foregoing reasons, the appeal is dismissed.