Superior Court of Connecticut, Judicial District of New Britain, New Britain
Tawn P. Burgos
Administrator, Unemployment Compensation Act et al Opinion No. 133486
MEMORANDUM OF DECISION
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.
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.
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.
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).
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.).
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.
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.).
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.
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.
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).
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.
foregoing reasons, the ...