Submitted on briefs April 23, 2019
Procedural
History
Appeal
from the decision of the Employment Security Board of Review
affirming the decision by an appeals referee that the
plaintiff was not entitled to certain unemployment
compensation benefits, brought to the Superior Court in the
judicial district of Waterbury and tried to the court,
Hon. Joseph H. Pellegrino, judge trial referee;
judgment sustaining the appeal and remanding the case for
further proceedings, from which the named defendant appealed
to this court. Reversed; judgment directed.
Beth
Z. Margulies and Philip M. Schulz, assistant attorneys
general, and George Jepsen, former attorney general, filed a
brief for the appellant (named defendant).
DiPentima, C. J., and Alvord and Diana, Js.
Opinion
DIPENTIMA, C. J.
The
defendant, the Administrator of the Unemployment Compensation
Act, appeals from the judgment of the Superior Court
reversing the decision of the Employment Security Board of
Review (board) denying benefits to the plaintiff, Karim
Seward, and remanding the matter to the board for further
proceedings.[1] On appeal, the defendant claims that the
court improperly (1) found and relied on facts beyond those
certified by the board and (2) used those facts to determine
that the board had abused its discretion in concluding that
the plaintiff had not established good cause to open the
decision of the appeals referee. We agree and, accordingly,
reverse the judgment of the Superior Court.
The
following facts and procedural history are relevant to our
discussion. Cowan Systems, LLC (Cowan), employed the
plaintiff as a truck driver from August 23, 2016, until March
15, 2017. On March 11, 2017, the plaintiff drove out of
Cowan's truck yard in the course of his work duties.
Shortly thereafter, the trailer separated from the truck,
resulting in approximately $10, 000 in damages. At the
commencement of the plaintiff's employment, Cowan had
informed the plaintiff of the requirement to conduct a
‘‘pull test, '' which was designed to
prevent separation of the trailer from the truck, ensure
safety and prevent property damage. Despite the
plaintiff's claim that the separation had been the result
of equipment failure, Cowan concluded that the plaintiff had
failed to conduct the ‘‘pull test'' and
considered the incident to have been a
‘‘preventable accident'' and therefore
terminated his employment.
On
April 24, 2017, the defendant approved the plaintiff's
application for unemployment compensation benefits. Cowan
appealed the defendant's determination to the Employment
Security Appeals Division. The appeals referee, in a May 19,
2017 decision, noted that the plaintiff had failed to
participate in the May 18, 2017 hearing. The referee further
stated that the issue was ‘‘whether the employer
discharged the [plaintiff] for wilful misconduct in the
course of his employment.'' After setting forth the
factors for determining whether an employee had been
discharged from employment for wilful misconduct, and thus
was ineligible for unemployment compensation benefits; see
General Statutes § 31-236 (a) (2) (B); the referee found
that the accident resulted from the plaintiff's failure
to conduct a ‘‘pull test.'' Applying the
applicable statute[2] and the relevant factors set forth in the
Regulations of Connecticut State Agencies, [3] the referee
determined that the plaintiff had ‘‘knowingly
violated a reasonable employer policy which was uniformly
enforced and reasonably applied.'' The referee
further concluded that the plaintiff was disqualified from
receiving unemployment benefits pursuant to § 31-236 (a)
(2) (B). Accordingly, the referee sustained Cowan's
appeal. The plaintiff's subsequent motion to open the
referee's decision was denied for failing to
‘‘[cite] any reason that could constitute good
cause for failing to participate in the referee's hearing
on May 18, 2017.''
The
plaintiff filed a timely appeal to the board, where the
issues were ‘‘whether the [plaintiff] has
demonstrated good cause for failing to participate in the
referee's hearing which was scheduled for May 18, 2017;
and whether the referee properly denied the [plaintiff's]
motion to [open].'' In his ‘‘written
argument'' in support of his appeal, the plaintiff
stated: ‘‘I was totally unaware of the scheduled
hearing date of May 18th and [it was] denied based on the
fact of not being involved. I was not involved in that
hearing because I was not aware of it. When I received the
hearing packet, it wasn't marked to indicate it was from
the appeals department, nothing to show it was anything
different from what is normally sent after starting a claim
and I missed the date.''
The
board concluded that this was not a sufficient excuse for
failing to appear at the May 18, 2017 hearing, stating:
‘‘[W]e find that the [plaintiff's] failure to
timely read his mail constituted poor mail handling, which
does not excuse his failure to participate in the
referee's May 18, 2017 hearing. We conclude that the
[plaintiff] has not shown good cause for failing to appear at
the referee's hearing and that the referee did not err in
denying his motion to [open]. By choosing not to attend the
referee's hearing despite having received notice of the
hearing, the [plaintiff] has waived the right to object to
the referee's findings of fact and conclusions of law
which were based on the testimony and evidence presented at
that hearing.'' (Footnote omitted.) Accordingly, the
board affirmed the decision of the referee.
On
September 13, 2017, the plaintiff filed an appeal with the
Superior Court.[4] Approximately three months later, the
defendant filed a motion for a judgment to dismiss the
appeal. On February 14, 2018, the court, after conducting a
hearing, issued a memorandum of decision overruling the
defendant's motion and remanding the matter to the board
with direction to grant the motion to open to afford the
plaintiff an opportunity to defend the initial ruling that he
was entitled to unemployment benefits. The court
‘‘observed that the [plaintiff] was just an
ordinary, working class person a bit overwhelmed with the
amount of mail he was receiving . . . . When the [plaintiff]
realized his error, he immediately requested that the matter
be reopened so that he could have an opportunity to present
his case. To deny the [plaintiff] an opportunity to have his
day in ‘court' when he already was adjudicated
eligible for benefits is, in the opinion of this court, a
gross abuse of discretion, especially when he immediately
responded to the decision of the [board] when he dis- covered
his mistake. There would not have been a long delay in the
process if his request would have been granted and he would
have had an opportunity to present his side of the
story.'' This appeal followed.[5]
As an
initial matter, we set forth the general principles regarding
an appeal involving unemployment benefits. ‘‘In
the processing of unemployment compensation claims . . . the
administrator, the referee and the employment security board
of review decide the facts and then apply the appropriate
law. . . . [The administrator] is charged with the initial
responsibility of determining whether claimants are entitled
to unemployment benefits. [See generally] General Statutes
§ 31-241. . . . This initial determination becomes final
unless the claimant or the employer files an appeal within
twenty-one days after notification of the determination is
mailed. [General Statutes § 31-241(a)]. Appeals are
taken to the employment security appeals division which
consists of a referee section and the board of review. [See]
General Statutes §§ 31-237a [and] 31-237b. . . .
The first stage of claims review lies with a referee who
hears the claim de novo. The referee's function in
conducting this hearing is to make inquiry in such manner,
through oral testimony or written and printed records, as is
best calculated to ascertain the substantial rights of the
parties and carry out justly the provisions . . . of the law.
General Statutes § 31-244. This decision is appealable
to the board of review. General Statutes § 31-249. Such
appeals are heard on the record of the hearing before the
referee although the board may take additional evidence or
testimony if justice so requires. [General Statutes §
31-249]. Any party, including the administrator, may
thereafter continue the appellate process by appealing to the
Superior Court and, ultimately, to [the Appellate and Supreme
Courts].'' (Internal quotation marks omitted.)
Ray v. Administrator, Unemployment Compensation Act,
133 Conn.App. 527, 531-32, 36 A.3d 269 (2012); see also
Addona v. Administrator, Unemployment Compensation
Act, 121 Conn.App. 355, 360-61, 996 A.2d 280 (2010)
(appeals from board to Superior Court are exempted from
Uniform Administrative Procedure Act, General Statutes §
4-166 et seq., and controlled by § 31-249b).
The
standard of review for judicial review of this type of case
is well established. ‘‘In appeals under . . .
§ 31-249b, the Superior Court does not retry the facts
or hear evidence but rather sits as an appellate court to
review only the record certified and filed by the board of
review. Practice Book § [22-9]. The court is bound by
the findings of subordinate facts and reasonable factual
conclusions made by the appeals referee where, as here, the
board . . . adopted the findings and affirmed the decision of
the referee. . . . Judicial review of the conclusions of law
reached administratively is also limited. The court's
ultimate duty is only to decide whether, in light of the
evidence, the board of review has acted unreasonably,
arbitrarily, illegally, or in abuse of its discretion. . . .
Nonetheless, issues of law afford a reviewing court a broader
standard of review when compared to a challenge to the
factual findings of the ...