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Baylock v. Administrator, Unemployment Compensation Act

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

April 13, 2016

Jane Baylock
v.
Administrator, Unemployment Compensation Act et al Opinion No. 133480

          MEMORANDUM OF DECISION

          Tanzer, J.T.R.

         Jane Baylock, (" plaintiff') has appealed the decision of the Employment Security Appeals Division Board of Review (" board") to deny her unemployment benefits. The matter was heard on March 3, 2016. The plaintiff, her counsel and counsel for the administrator appeared.

         The following facts as found by the referee and as adopted and modified by the board are relevant to this appeal. The claimant began working for Dress Barn (" employer") on May 1, 1999. At the time of separation, the claimant worked part time as a sales associate. On January 13, 2015, the employer discharged the claimant for failing to report for three pay periods that the employer was inaccurately compensating her at a higher rate of pay than she was entitled to receive. The employer maintains a policy regarding paychecks, of which the claimant acknowledged receipt. It states in relevant part: " If you believe there is an error in your pay (either over payment or under payment) you must report it to your store or district leader or a human resources representative who will review your pay with the payroll department and arrange to have any mistake corrected promptly. The employer maintains this policy to ensure its employees are compensated accurately. The employer treats similarly situated employees who violate this rule in the same manner in which it treated the claimant. No compelling circumstances existed at the time the claimant's conduct violated the rule. The claimant understood the employer's policy. On September 17, 2014, the claimant chose to step down from her assistant manager position to a part-time sales associate position. At this time, the claimant's rate of pay was reduced from $15.11 per hour to $10.50 per hour. The claimant was aware of the reduction in pay. On November 7, 2014, the claimant received her first paycheck post-demotion and was compensated at a rate of pay of $15.11 per hour for services performed solely as a sales associate. The claimant advised the new assistant manager of the mistake in her pay. The assistant manager lacked the authority to correct errors in an employee's pay. The assistant manager advised the claimant to speak to the store leader regarding the error in pay. The claimant advised the assistant that she would wait until she received her next paycheck before doing so. The claimant had a pleasant working relationship with the assistant manager that was free of conflict. On November 14, 2014, the claimant received her second paycheck post-demotion and was compensated at a rate of pay of $15.11 per hour for services performed solely as a sales associate. The claimant failed to advise the employer of its error. On December 5, 2014, the claimant received her third paycheck post-demotion and was compensated at a rate of pay of $15.11 per hour for services performed solely as a sales associate. The claimant failed to advise the employer of its error. On December 19, 2014, the claimant received her fourth paycheck post-demotion and was compensated at a rate of pay of $15.11 per hour for services performed solely as a sales associate. The claimant failed to advise the employer of its error. Between November 7, 2014, and her last day of work, the claimant spoke with her husband regarding the inaccuracies with her rate of pay. The claimant's husband advised her not to alert the employer of its error. On December 20, 2014, the store leader discovered that the employer had been compensating the claimant as an assistant manager when she was performing services for the employer solely as a sales associate. On January 13, 2015, the district leader confronted the claimant regarding the inaccuracies in her rate of pay in her checks dated November 7, 14, December 5 and 19, 2014. In response the claimant stated, " I know, I knew I should've said something sooner but [my husband] told me not to." The claimant acknowledged that she should have come forward sooner and that she was wrong in not doing so. The employer then discharged the claimant from employment.

         The plaintiff filed an application for unemployment compensation benefits. The administrator granted the plaintiff's application for benefits, and the employer appealed. A de novo hearing was held before a referee. The referee made findings of fact and reversed the decision of the administrator. The referee found the plaintiff ineligible for benefits under Connecticut General Statutes § 31-236(a)(2)(B) for willful misconduct. The plaintiff appealed to the board of review. The board adopted the referee's findings of fact with one addition and affirmed the referee's decision that the employer discharged the claimant for willful misconduct in the course of her employment.

         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 parties are at odds in this appeal as to whether the plaintiff was ineligible for benefits because she was discharged for willful misconduct. General Statutes § 31-236(a)2(B), in pertinent part, defines willful misconduct as " a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not the result of the employee's incompetence." " Whether the circumstances of an employee's termination constitute willful misconduct on the employee's part is a mixed question of law and fact." United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, supra, 209 Conn. at 386, 551 A.2d 724.

         " The regulation relating to willful misconduct under the knowing violation definition expressly states that the administrator ' must find all ' of the listed criteria in order to establish that a knowing violation has occurred and thereby deny benefits to a claimant. (Emphasis added.) Regs., Conn. State Agencies § 31-236-26b." To establish that an individual was discharged or suspended for a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, all of the following must be found: 1) the individual knew or should have known of the rule or policy because it was effectively communicated to the individual; 2) the individual's conduct violated the rule; 3) the individual was aware he was engaged in such conduct; 4) the rule is reasonable in light of the employer's lawful business interest and there is a clear relationship between the rule, the conduct regulated, and the employer's lawful business interest; 5) the employer uniformly enforced the rule in that similarly situated employees subject to the workplace rule are treated in a similar manner when they violate a rule or policy; 6) the rule is reasonably applied in that the action taken by the employer is appropriate in light of the violation of the rule and the employer's lawful business interest, and there were no compelling circumstances which would have prevented the individual from adhering to the rule; and 7) the violation of the rule was not the result of the individual's incompetence. See Regs., Conn. State Agencies § 31-236-26b. " [I]n making a finding of willful misconduct, the administrative authority must expressly make findings as to all of the elements listed in the relevant regulation, including a recitation of the facts that are the basis of those findings." Resso v. Administrator, Unemployment Compensation Act, 147 Conn.App. 661, 669, 83 A.3d 723 (2014).

         In this case, the referee found all of the elements of the regulation were satisfied and recited facts that are the basis of that finding as follows: " . . . [T]he employer effectively communicated its policy to the claimant and . . . her conduct after her self-imposed demotion demonstrates that she knowingly violated the policy at issue by concealing the employer's error to gain additional pay . . . [T]he employer's policy is reasonable in light of the employer's lawful business interest of keeping an accurate payroll . . . The employer uniformly enforced the rule by treating similarly situated employees subject to the workplace rule in a similar manner when they violate the same policy. In addition, the claimant failed to provide any credible countervailing evidence to disprove and/or discredit the employer's assertion of uniform enforcement . . . [D]ue to the dishonest nature of the violation, the employer's decision to discharge the claimant as a result of her violation was reasonable . . . Furthermore, the record is devoid of sufficiently mitigating circumstances that would negate the willfulness of the claimant's conduct. In addition, the record does not support a finding that the claimant's violation was a result of her incompetence as evidenced by her admission of wrong doing at the time of separation. The referee finds the employer met its burden of proving all elements of the rule violation provision of Regs., Conn. State Agencies § 31-236-26b. Accordingly . . . the employer has sustained its burden in proving that the claimant's actions rose to the level of willful misconduct. Consequently, the separation is disqualifying pursuant to § 31-236(a)(2)(B) of the General Statutes.

         In her appeal to the board and in this appeal, the plaintiff claims she fulfilled her duty to report the overpayment of pay when she reported it to the assistant manager. She maintains the assistant manager is part of the store and should have reported the overpayment and/or that under principles of agency, notice to the assistant manager was notice to the store. As a factual matter, the referee did not believe the plaintiff, and rather believed the assistant manager that she told the plaintiff to report the overpayment to the store leader.

         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, the parties' memoranda and their arguments at the hearing, this court concludes that the board's factual findings support the conclusion that the plaintiff was discharged for willful misconduct. The court further concludes that the board's findings and conclusions were not unreasonable, arbitrary, illegal, or an abuse of discretion.

         The plaintiff's request for a waiver of the overpayment of benefits to her will not be addressed in this appeal. As instructed in the referee's decision, the employer's potential liability for the overpayment of compensation benefits and the plaintiff's right to seek a waiver of overpayments are the subject of separate subsequent proceedings pursuant to General Statutes § 31-249b.

         Conclusion

         For the foregoing reasons, the ...


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