Seward v. Administrator, Unemployment Compensation Act ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
KARIM SEWARD v. ADMINISTRATOR,
UNEMPLOYMENT COMPENSATION
ACT, ET AL.
(AC 41423)
DiPentima, C. J., and Alvord and Diana, Js.
Syllabus
The defendant administrator of the Unemployment Compensation Act
appealed to this court from the judgment of the trial court sustaining
the plaintiff’s appeal from the decision of the Employment Security
Board of Review, which affirmed the determination by an appeals referee
that the plaintiff was not entitled to certain unemployment benefits.
The plaintiff, who had been employed as a truck driver for C Co., had
been discharged from his employment due to his failure to follow certain
safety protocols, which resulted in the trailer separating from a truck that
he was driving, causing damages. The plaintiff had filed an application
for unemployment compensation benefits that initially was approved
by the administrator. C Co. appealed from that decision, and the appeals
referee, following a hearing, found that because the plaintiff had engaged
in wilful misconduct, he was ineligible to receive benefits. The plaintiff,
who did not attend the hearing before the appeals referee, thereafter
filed a motion to open the referee’s decision, which the referee denied
on the ground that the plaintiff had not established good cause for his
failure to participate in the hearing. The board subsequently affirmed
the decision of the referee, concluding that the plaintiff had waived his
right to challenge the referee’s findings by failing to attend the hearing.
The board further concluded that the plaintiff’s reason for his absence,
namely, that he did not open the referee’s hearing notice because it did
not indicate it was from the appeals division and, therefore, he had been
unaware of the hearing date, did not constitute good cause. Thereafter,
the plaintiff appealed to the trial court, which denied the administrator’s
motion for a judgment of dismissal and remanded the matter to the
board with direction to grant the motion to open. In doing so, the trial
court, which found that the plaintiff was an ordinary, working class
person who had been overwhelmed by the amount of mail he was
receiving, that he immediately moved to open the matter upon realizing
his error, and that he already had been deemed eligible for benefits,
concluded that the denial of the motion to open constituted an abuse
of discretion. Held that the trial court exceeded the scope of its authority
by making factual findings not in the record and relying on those findings
in determining that the board had abused its discretion by denying the
plaintiff’s motion to open; in an appeal from a decision of the board,
the trial court is bound by the board’s factual findings, and, therefore,
it was improper for the trial court to make and to rely on its own factual
finding, namely, that the plaintiff was an ordinary layperson who had
been overwhelmed by the amount of mail he was receiving, as a basis
for its determination that the board’s conclusion that the plaintiff had
not established good cause to open the appeal referee’s decision was
an abuse of discretion.
Submitted on briefs April 23—officially released July 30, 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).
Opinion
DiPENTIMA, C. J. The defendant, the Administrator
of the Unemployment Compensation Act, appeals from
the judgment of the Superior Court reversing the deci-
sion of the Employment Security Board of Review
(board) denying benefits to the plaintiff, Karim Seward,
and remanding the matter to the board for further pro-
ceedings.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 rele-
vant 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 plain-
tiff’s application for unemployment compensation ben-
efits. Cowan appealed the defendant’s determination to
the Employment Security Appeals Division. The appeals
referee, in a May 19, 2017 decision, noted that the plain-
tiff 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 mis-
conduct in the course of his employment.’’ After setting
forth the factors for determining whether an employee
had been discharged from employment for wilful mis-
conduct, 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 statute2 and the relevant factors
set forth in the Regulations of Connecticut State Agen-
cies,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 pur-
suant 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 demon-
strated good cause for failing to participate in the refer-
ee’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 pre-
sented at that hearing.’’ (Footnote omitted.) Accord-
ingly, 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 oppor-
tunity 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 pres-
ent 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 adminis-
trator] is charged with the initial responsibility of
determining whether claimants are entitled to unem-
ployment 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 determi-
nation 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, ulti-
mately, to [the Appellate and Supreme Courts].’’ (Inter-
nal quotation marks omitted.) Ray v. Administrator,
Unemployment Compensation Act, 133 Conn. App. 527,
531–32, 36 A.3d 269 (2012); see also Addona v. Adminis-
trator, 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 administra-
tively 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 referee.’’ (Citations omitted; internal quo-
tation marks omitted.) Addona v. Administrator,
Unemployment Compensation Act, supra, 121 Conn.
App. 361; see also Burnham v. Administrator, Unem-
ployment Compensation Act, 184 Conn. 317, 321–22,
439 A.3d 1008 (1981).
On appeal, the defendant claims that the Superior
Court exceeded the scope of its review by finding and
relying on facts outside of the certified record, in viola-
tion of controlling case law and our rules of practice,
and then improperly used those facts to determine that
the board had abused its discretion. We agree.
In its decision, the court found, on the basis of its
observations, that ‘‘the [plaintiff] was just an ordinary,
working class person a bit overwhelmed with the
amount of mail he was receiving . . . .’’ It further found
that the plaintiff has made immediate efforts to remedy
his error in failing to attend the hearing before the
referee. These facts formed the foundation of the
court’s conclusion that denying the plaintiff an opportu-
nity to present his case amounted to a ‘‘gross abuse
of discretion.’’
The board did not find that the plaintiff was ‘‘an
ordinary, working class person’’ who had been over-
whelmed by the volume of mail related to the claim for
unemployment benefits. ‘‘In an appeal to the court from
a decision of the board, the court is not to find facts.
. . . In the absence of a motion to correct the finding
of the board, the court is bound by the board’s finding.’’
(Citations omitted.) Ray v. Administrator, Unemploy-
ment Compensation Act, supra, 133 Conn. App. 533;
see also Belica v. Administrator, Unemployment Com-
pensation Act, 126 Conn. App. 779, 786, 12 A.3d 1067
(2011) (failure to file timely motion for correction of
board’s findings in accordance with Practice Book § 22-
4 prevents further review of facts found by board); Shah
v. Administrator, Unemployment Compensation Act,
114 Conn. App. 170, 176, 968 A.2d 971 (2009) (same);
Kaplan v. Administrator, Unemployment Compensa-
tion Act, 4 Conn. App. 152, 153, 493 A.2d 248 (power
of Superior Court is limited in this type of appeal; it
does not try matter de novo and its function is not to
adjudicate questions of fact), cert. denied, 197 Conn.
802, 495 A.2d 281 (1985).
We conclude that the Superior Court exceeded the
scope of its review in this case by finding facts. The
facts improperly found by the court formed the basis
of its determination that the board had abused its discre-
tion. Stated differently, the reasoning of the Superior
Court, in reversing the decision of the board and
remanding the case for further proceedings, rested on
facts found by the court. The Superior Court, under
these facts and circumstances, was bound by the facts
found by the board. By making and relying on its own
factual findings, the Superior Court exceeded its role.
The determination that the board abused its discretion,
therefore, is improper.
The judgment is reversed and the case is remanded
with direction to render judgment affirming the decision
of the Employment Security Board of Review.
In this opinion the other judges concurred.
1
The plaintiff, who prevailed before the Superior Court, did not file a
brief; therefore, this appeal was considered on the basis of the defendant’s
brief and appendix only.
2
General Statutes § 31-236 (a) provides in relevant part: ‘‘An individual
shall be ineligible for benefits . . . (2) . . . (B) if, in the opinion of the
administrator, the individual has been discharged . . . for . . . wilful mis-
conduct in the course of the individual’s employment . . . .’’ General Stat-
utes § 31-236 (a) (16) provides in relevant part that ‘‘ ‘wilful misconduct’
means deliberate misconduct in wilful disregard of the employer’s interest,
or a single knowing violation of a reasonable and uniformly enforced rule
or policy of the employer, when reasonably applied, provided such violation
is not a result of the employee’s incompetence . . . .’’
3
‘‘To establish that an individual was discharged or suspended for wilful
misconduct under this definition, pursuant to § 31-236-23b of the Regulations
of Connecticut State Agencies, all of the following findings must be made.
First, there must have been a knowing violation in that (1) the individual
knew of such rule or policy, or should have known of the rule or policy
because it was effectively communicated to the individual. . . . (2) [T]he
individual’s conduct violated the particular rule or policy; and (3) the individ-
ual was aware he [or she] was engaged in such conduct. Regs., Conn. State
Agencies § 31-236-26b (a). Second, the rule or policy must be reasonable in
that it furthers the employer’s lawful business interest. Id., § 31-236-26b (b).
Third, the rule or policy must be uniformly enforced in that similarly situated
employees subject to the workplace rule or policy are treated in a similar
manner when a rule or policy is violated. Id., § 31-236-26b (c). Fourth, the
rule or policy must be reasonably applied in that (1) . . . the adverse person-
nel action taken by the employer is appropriate in light of the violation of
the rule or policy and the employer’s lawful business interest . . . and (2)
. . . there were no compelling circumstances which would have prevented
the individual from adhering to the rule or policy. Id., § 31-236-26b (d).
Fifth, the violation of the rule or policy must not have been a result of the
individual’s incompetence, where the individual was incapable of adhering
to the requirements of the rule or policy due to a lack of ability, skills or
training, unless it is established that the individual wilfully performed below
his employer’s standard and that the standard was reasonable. Id., § 31-
236-26b (e).’’ (Internal quotation marks omitted.) Resso v. Administrator,
Unemployment Compensation Act, 147 Conn. App. 661, 666, 83 A.3d 723
(2014).
4
See General Statutes § 31-249b.
5
Although the court’s remand order was interlocutory in nature, we con-
clude that it was a final judgment for purposes of appeal. ‘‘A trial court
may conclude that an administrative ruling was in error and order further
administrative proceedings on that very issue. In such circumstances, we
have held the judicial order to be a final judgment, in order to avoid the
possibility that further administrative proceedings would simply reinstate
the administrative ruling, and thus would require a wasteful second adminis-
trative appeal to the Superior Court on that very issue. Schieffelin & Co.
v. Dept. of Liquor Control, 202 Conn. 405, 410, 521 A.2d 566 (1987).’’ (Internal
quotation marks omitted.) Ray v. Administrator, Unemployment Compen-
sation Act, 133 Conn. 527, 532 n.3, 36 A.3d 269 (2012).
We conclude that the present case presents a situation where the adminis-
trator’s ruling was held to be in error and further administrative proceedings
on that very issue are necessary. Thus, the decision of the Superior Court
constituted a final judgment for the purpose of this appeal. See Belica v.
Administrator, Unemployment Compensation Act, 126 Conn. App. 779, 784
n.8, 12 A.3d 1067 (2011).