Superior Court of Connecticut, Judicial District of New Britain, New Britain
MEMORANDUM OF DECISION
Cynthia K. Swienton, J.
This unemployment compensation appeal to the Superior Court is brought by the employee, Artemis Sims (" Sims") from an April 13, 2015, decision of the employment security appeals division board of review (the board).
On December 3, 2014, the defendant administrator of the unemployment compensation act (the administrator) found Sims eligible for unemployment benefits from his employer, Community Options Residential Service, Inc. (the employer). The employer had discharged Sims from his employment for unsatisfactory job performance resulting from his failure to conduct bed checks and to perform a medication audit correctly, and deliberate misconduct in the course of employment in wilful disregard of the employer's interest. The employer furnished no statement, therefore the administrator found there was no evidence of wilful misconduct and found Sims eligible for benefits.
The employer filed a timely appeal from the administrator's determination. Upon the appeal to the next level, the employment security appeals referee (the referee) affirmed the administrator's decision, and dismissed the appeal. The referee found that despite Sims being discharged for a series of dissatisfactions with his job performance, the final incident triggering Sims' discharge was the result of his inability to perform that job, and not the result of an intentional act. Therefore, Sims was not disqualified from receiving unemployment compensation benefits under General Statutes § 31-236(a)(2)(B).
The employer appealed the referee's decision to the board, and on April 13, 2015, the board reversed the referee's decision and sustained the appeal. Sims filed the present appeal with the court. He states that the decision was incorrect, in that he disagrees with the " real reason" he was terminated. The administrator has filed a motion for judgment requesting the court to dismiss Sims' appeal and affirm the board's decision.
STANDARD OF REVIEW
Under General Statutes § 31-249b, the court does not undertake de novo review for unemployment compensation appeals from the Employment Security Board of Review and is bound by those facts found, and reasonable conclusions reached from them. The court may go no further than to determine whether the decision appealed is unreasonable, arbitrary or illegal. JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417-18, 828 A.2d 609 (2003); Burnham v. Administrator, 184 Conn. 317, 321-22, 439 A.2d 1008 (1981).
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." Practice Book § 22-9.
" Practice Book § 22-4 provides the mechanism for the correction of the board's findings. If the [claimant] desires that the findings be corrected, the [claimant] 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." (Internal quotation marks omitted.) Belica v. Administrator, Unemployment Compensation Act, 126 Conn.App. 779, 786, 12 A.3d 1067 (2011). " [A] [claimant'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." Id.
Here the board adopted the factual findings of the referee with regard to the reasons for Sims' discharge from employment, with several additions. Since Sims did not file a motion to correct with the board within two weeks of the filing of the record with the court, as required by § 22-4, and which prevents further review of those facts, the board's findings are binding on this court. Therefore, the court reviews the decision only to determine if the board's decision was unreasonable, arbitrary, or illegal. JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 417-18.
General Statutes § 31-236(a)(2)(B) provides that an individual is ineligible for benefits if the individual has been discharged or suspended for wilful misconduct in the course of the individual's employment. Wilful misconduct is defined in § 31-236(a)(16) as: " . . . 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 and provided further, in the case of absence from work, 'wilful misconduct' means an employee must be absent without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances for three separate instances within a twelve-month period." (Emphasis added.)
Pursuant to Reg. Conn. Agencies, D.O.L., § 31-236-26a(a)(1997), deliberate misconduct requires commission of an act or omission that 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. Pursuant to 31-236a(c), deliberate misconduct in wilful disregard of the employer's interest is established where the individual knew or should have known that such an act was contrary to the employer's interest or expectation and, at the time the act took place, he understood it was contrary to the employer's expectation or interest and he was not motivated or seriously influenced by circumstances of a compelling nature. Such mitigating circumstances include events or conditions which left the individual no reasonable alternative course of action or an emergency situation where a reasonable individual in the same circumstances would commit the same act, despite knowing it was contrary to the employer's expectation or interest. The board of review has held that deliberate misconduct is established by conduct in reckless disregard of the employer's interest as well as an intentional and substantial disregard of duties owed to the employer. Carelessness or negligence of sufficient degree or frequency constitutes deliberate misconduct as an indifference to the duties or an intentional or reckless disregard of the employer's interests. See, United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 386-87, 551 A.2d 724, 727 (1988). In determining a pattern of negligence as wilful misconduct, considerations of the board include such factors as warnings to the employee, the total number of instances of negligence, requiring at least three similar acts, frequency of such acts, their nature and gravity of the violation, and the presence of mitigating factors.
The referee and the board found the following facts. Sims worked for the employer from July 1990, to November 7, 2014 when he was discharged for unsatisfactory job performance. In his termination letter, the employer indicated that he was discharged for " failing to be responsive to supervision" and " placing individuals at risk, " specifically for delayed entries for bed checks and inaccurate medication audit and disposal of expired medicine. On thirteen occasions between October 2, 2014, and October 30, 2014, Sims entered the information for bed checks between one and ten days after he allegedly performed the checks. He failed ...