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Burgos v. Administrator, Unemployment Compensation Act

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

April 11, 2016

Tawn P. Burgos
v.
Administrator, Unemployment Compensation Act et al Opinion No. 133486

          MEMORANDUM OF DECISION

          Tanzer, J.T.R.

         In this case, Tawn Burgos, (" plaintiff") has appealed the decision of the Employment Security Appeals Division Board of Review (" board") to deny him unemployment benefits. The matter was heard on December 3, 2015. Both the plaintiff and the administrator appeared.

         The plaintiff filed an application for unemployment compensation claiming lack of work with his employer, A.J. Vicino & Sons, Inc. (" employer"). The administrator granted the plaintiff's application for benefits, and the employer appealed. A hearing was held before a referee at which the plaintiff and employer appeared. The referee reversed the decision of the administrator. The referee found the plaintiff ineligible for benefits under Connecticut General Statutes § 31-236(a)(2)(A) because he left suitable work voluntarily, without good cause attributable to his employer. The referee denied the claimant's motion to open.

         The plaintiff then appealed to the board of review. The board adopted the referee's findings of fact and with one modification affirmed the referee's decision.

         The plaintiff timely filed this appeal pursuant to General Statutes § 31-249b. " 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 . . . 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; footnote omitted.) United Parcel Service, Inc. v. Administrator, 209 Conn. 381, 385-86, 551 A.2d 724 (1988).

         The dispute between the plaintiff and the employer before the referee was whether the claimant quit his job or was discharged. Pursuant to General Statutes § 31-236(a)(2)(A), an individual is ineligible for benefits if he voluntarily left suitable employment without good cause attributable to his employer. To find a voluntary leaving, the individual must have committed the specific intentional act of terminating his own employment. Regs., Conn. State Agencies § 31-236-18. Where there is a controversy over whether a claimant quit or was discharged, the ultimate decision with respect to the categorization of the separation is made based on the facts of the case. It is within the exclusive authority of the adjudicator to make this determination which does not depend on either party's characterization of the separation. See Hutchinson v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-135014047-S (August 28, 2013, Karazin, J.T.R.).

         The referee found as follows: The claimant began employment in September 2013. He was employed as a full-time general laborer when he abruptly voluntarily left his job on January 28, 2015. The claimant was typically scheduled to work Monday through Friday, from 8:00 a.m. to about 5:30 to 6:00 p.m. On Wednesday, January 28, 2015, at 5:15 p.m., the claimant stood by the door and told Barbara Vicino, the owner (Vicino), " This is my last day." He then slammed the door as he walked out. On January 28, 2015, the claimant yelled at Vicino and made a negative comment about another employee, saying he was a " junky" but that he had a salary. The claimant then abruptly quit his job without further discussing the matter. On January 29, 2015, the claimant sent a text message to Bruce, the foreman, at about 4:30 p.m. The claimant indicated to Bruce that he wanted to work and to contact him. Bruce told the claimant that he quit his job. After contacting Bruce, the claimant did not contact Vicino to rescind his resignation. The claimant also did not contact Vicino to seek clarification regarding his employment status. The employer did not issue a termination letter, or a separation notice called " the pink slip" to the claimant. The employer did not discharge the claimant on January 28, 2015, for lack of work. Continuing work was available for the claimant had he not quit. The employer had maintenance of equipment work for the claimant and work at the village cemetery. The employer never told the claimant that his job was in jeopardy. The employer did not issue any warnings to the claimant. The claimant was a good worker. The claimant made one complaint about an employee in about May of 2014. Since this complaint, the claimant did not make any other complaints to Vicino prior to the separation. Upon the claimant's request, Vicino wrote a letter to the Department of Social Services on January 8, 2015. Vicino indicated in the letter that the claimant was a full-time employee, but as of that time, there were no work hours for the claimant. Vicino wrote this letter for the claimant, because the claimant told Vicino that he was enduring financial hardship. The letter does not state that the claimant was permanently discharged for lack of work. The claimant performed work for the subject employer after January 8, 2015.

         The referee concluded the claimant committed the specific and intentional act of terminating his own employment on January 28, 2015. The referee also concluded Vicino was not given an opportunity to reasonably respond to his sudden angry outburst. Unless there is evidence in the record which undermines a referee's credibility determination or the referee failed to consider critical evidence or assigned evidence inappropriate weight, a credibility determination made by a referee is entitled to deference. See Paparo v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-125013900-S (October 10, 2012, Karazin, J.T.R.).

         In his appeal to the board, the plaintiff requested an evidentiary hearing before the full board. First, he claimed he did not receive a fair hearing or an opportunity to present documentary evidence, including photos of text messages to support his attempts to contact his foreman. He also wished to introduce new evidence concerning new claims about job safety and the employers' failure to pay him overtime. The board, after reviewing the record of the plaintiff's appeal, including the recording of the referee hearing, denied the plaintiff's request for an evidentiary hearing, stating, " [T]he Board of Review will not retry a matter where the referee afforded the party a full and fair opportunity to present its case . . ." The board also considered the ruling on the plaintiff's motion to open and found that the findings of fact on which the referee's decision was based were supported by the evidence and testimony introduced at the referee's hearing. The board further concluded there was no basis for admitting the plaintiff's alleged new evidence. The board adopted the referee's findings of fact with the modification that " The claimant indicated to Bruce that he wanted to perform snow-removal work only and to contact him." The board affirmed the referee's decision and dismissed the plaintiff's appeal.

         In his appeal to the board and in this appeal, the plaintiff claims he was denied a fair hearing because he was unable to present relevant evidence. The court has discretion to order a transcript of the hearing in the absence of a motion to correct where. such a claim is made. Practice Book § 22-1(c) provides that the court may order the defendant board on request of a party or on its own motion to prepare a transcript of the hearing before the referee. In Keegan v. Administrator Unemployment Compensation Act, Superior Court, judicial district of Hartford, Docket No. CV-920515253-S (July 29, 1996, Sheldon, J.), the court ordered a transcript when " the gravamen of the plaintiff's appeal [was] that he was denied due process by the decisions of the appeals referee and the [b]oard to restrict the evidence he could present . . ." In this case, the plaintiff claims he was denied the opportunity to present evidence in the form of text messages on his phone relevant to his claims that he did not quit and that he sought work from his foreman after January 28. Pursuant to this court's order, a transcript of the hearing before the referee has been filed as part of the record in this appeal. Based on its review of the transcript, this court concludes, as did the board, that the referee afforded the claimant a full and fair opportunity to present his case. At the hearing before the referee, the plaintiff was given opportunity to summarize the text messages on his phone. Moreover, the referee's findings, as modified by the board, include reference to and indicate consideration of the communication with Bruce, the foreman.

         The plaintiff did not file a motion to correct the findings. It is well established that a party is barred from challenging the findings of fact of the board of review on appeal to court, in the absence of a timely motion to correct the findings pursuant to Practice Book § 22-4. JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422, 828 A.2d 609 (2003). 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, 174 Conn. 529, 391 A.2d 165 (1978).

         After a review of the certified record including the transcript, the parties' pleadings and their arguments at a hearing on December 3, 2015, this court concludes that the board's factual findings support the conclusion that the plaintiff voluntarily left his employment without good cause. The court further concludes that the board's findings and conclusions were not unreasonable, arbitrary, illegal, or an abuse of discretion.

         Conclusion

         For the foregoing reasons, the ...


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