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Abdelrouf v. Administrator, Unemployment Compensation Act

Superior Court of Connecticut, Judicial District of New Haven, New Haven

November 5, 2015

Samer Abdelrouf
v.
Administrator, Unemployment Compensation Act

MEMORANDUM OF DECISION

Robin L. Wilson, J.

STATEMENT OF CASE

In this case, Samer Abdelrouf, [hereinafter plaintiff] has appealed the decision of the Employment Security Appeals Division Board of Review [hereinafter board] affirming the appeals referee's decision to reverse the Administrator's approval of unemployment benefits. The matter was heard on August 31, 2015. Both the plaintiff and the administrator appeared. For the reasons stated herein, the plaintiff's appeal is dismissed.

FACTS

The record discloses the following facts. The administrator ruled the plaintiff eligible for unemployment benefits effective April 13, 2014, and notified the employer of its chargeability on June 17, 2014. On June 23, 2014, the employer filed a timely appeal of the administrator's decision to the Waterbury office of the appeals division. The appeals division scheduled a hearing of the appeal for July 21, 2014, to which the employer appeared, however the plaintiff failed to appear. By a decision issued on July 22, 2014, the appeals referee reversed the ruling of the administrator.

On August 11, 2014, the plaintiff filed a timely motion to reopen the referee's decision. On August 11, 2014, the appeals referee conditionally granted the motion to reopen and withdrew his decision. The appeals division scheduled a new hearing for September 2, 2014, to which the plaintiff and employer appeared. On September 9, 2014, the appeals referee denied the motion to reopen and reinstated his July 22, 2014 decision.

The plaintiff filed a timely appeal to the board on September 24, 2014. Acting under its authority contained in General Statutes § 31-249, [1] the board reviewed the record, including the recording of the referee's hearing, and on November 6, 2014, affirmed the referee's decision and dismissed the plaintiff's appeal. On November 24, 2014, pursuant to General Statutes § 31-249b[2] the plaintiff filed a timely appeal to the Superior Court.

The plaintiff was employed by Southington Ventures, LLC as a cashier in its gasoline station convenience store in Southington, Connecticut from July 15, 2012 until April 4, 2014, when he was discharged. On March 30, 2014, Patricia Bradstreet, the employer's operation manager, discovered that the employer had erroneously deposited two payments totaling $1, 304.66 into the plaintiff's checking account. The plaintiff received these deposits on March 21 and March 28, 2014. Bradstreet learned that these deposits were intended to be delivered to one of the plaintiff's co-workers, but were deposited into the plaintiff's account due to a glitch in the employer's computer system.

On March 30, 2014, Bradstreet telephoned the plaintiff and explained that he had received two payroll deposits from the employer in error due to a computer glitch. Bradstreet asked the plaintiff to submit a payment to the employer, as repayment for the erroneous deposits he had received. The plaintiff refused and added, " It's not my problem." On April 2, 2014, the employer's owner, Jafar Kafel, contacted the plaintiff and requested that he immediately repay the employer for the erroneous deposits. The plaintiff again refused, but agreed to repay the employer in installments upon his return from an upcoming vacation. Kafel did not agree to the plaintiff's proposal. On April 4, 2014, Bradstreet again contacted the plaintiff, and requested that he repay the employer for the erroneous deposits. The plaintiff again refused at which time Bradstreet informed the plaintiff that she would be contacting the local police if he did not repay the employer. The plaintiff refused to repay the employer.

On April 4, 2014, Bradstreet reported to the Southington, Connecticut police department, and notified the police of the plaintiff's refusal to return the erroneous deposits to the employer. A short time thereafter, the plaintiff was contacted by a police officer who instructed the plaintiff to return the deposits to his employer. The plaintiff agreed, however on the condition that the employer would secure his job. The officer explained to the plaintiff that he did not have the authority to grant the plaintiff's request, as that was the employer's decision. Approximately two hours later, the plaintiff provided the employer with a payment in the amount of $1, 304.66. On April 4, 2014, the employer discharged the plaintiff. As previously noted, the appeals referee, based on the evidence presented, reversed the decision of the administrator, and the board of review adopted the findings of fact and decision of the referee and affirmed the referee's decision.

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 (1999), quoting Mattatuck Museum-Mattatuck Historical Soc'y 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, [554 A.2d 292] (1989)." Cooper v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New London at Norwich, Docket No. CV 98 115055, 2000 Conn. Super. LEXIS 494 (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 ...


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