Phillips v. Administrator, Unemployment Compensation Act ( 2015 )

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ELBA PHILLIPS v. ADMINISTRATOR,
UNEMPLOYMENT COMPENSATION
ACT ET AL.
(AC 36379)
Lavine, Mullins and Schaller, Js.
Argued January 22—officially released May 19, 2015
(Appeal from Superior Court, judicial district of
Hartford, Schuman, J.)
Elba Phillips, self-represented, the appellant
(plaintiff).
Maria C. Rodriquez, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Philip M. Schulz, assistant attorney general,
for the appellee (named defendant).
Opinion
LAVINE, J. In this appeal, the plaintiff, Elba Phillips,
challenges the determination that she is not eligible
for unemployment compensation benefits due to the
finding that she was dismissed from employment on
the basis of deliberate misconduct in the course of her
employment. The plaintiff appeals from the judgment
of the trial court rendered in favor of the defendants,
the Administrator of the Unemployment Compensation
Act (administrator), Community Substance Abuse Cen-
ters, Inc. (employer), and the Employment Security
Appeals Division–Board of Review (board).1 On appeal,
the plaintiff claims that the trial court improperly
granted the administrator’s motion for judgment on the
basis of the certified record. We affirm the judgment
of the trial court.
The plaintiff was discharged from her employment
on February 29, 2012, for allegedly falsifying the records
of her employer. She filed an application for unemploy-
ment benefits, which was granted by an unemployment
adjudicator, who found that the plaintiff had been dis-
charged for reasons that did not constitute wilful mis-
conduct.2 The employer appealed.
The appeal was heard by a referee on May 2, 2012.
The plaintiff represented herself at the hearing. The
referee made the following findings of fact. The plaintiff
had been employed as a counselor from June 11, 2001,
until February 29, 2012. Her duties required her to con-
duct weekly one hour group therapy sessions and she
was to record electronically the time of the weekly
group session on each participant’s record. The
employer relied on those records for billing purposes.
On June 8, 2011, the employer issued a formal written
warning to the plaintiff for her failure to follow its
policies and procedures.
The referee further found that the plaintiff scheduled
a weekly one hour group therapy session from 10 a.m.
to 11 a.m. on February 22, 2012, but she did not begin
the session until 10:20 a.m. and released the participants
at 10:50 a.m. On that date at 12:39 p.m., the plaintiff
recorded on the record of each of the participants that
the group session began at 10:02 a.m. and ended at
11:02 a.m. The plaintiff knew at the time she recorded
it that the information was false. Moreover, the referee
found that the employer previously had advised the
plaintiff during a staff meeting that it must repay money
when fraudulent billing occurs. On February 24, 2012,
the plaintiff acknowledged that she was present at the
staff meeting and that she was aware of the advisement.
On February 29, 2012, the employer discharged the
plaintiff for falsifying the group participants’ records.
On May 11, 2012, the referee issued her decision. She
stated that pursuant to General Statutes § 31-236 (a)
(2) (B),3 an employee who is discharged from employ-
ment is disqualified from receiving unemployment ben-
efits if the discharge was for wilful misconduct. The
employer bears the burden of proving that an incident
of wilful misconduct triggered the employee’s dis-
charge. See Crebase v. Administrator, Unemployment
Compensation Act, Superior Court, judicial district of
New Haven, Docket No. CV-03-0482963-S (August 13,
2008) (46 Conn. L. Rptr. 169). The final employee act
that results in discharge is determined by the chronol-
ogy of events that occurred at a time proximate to the
discharge. The final act is considered generally to be
the last objectionable event that occurred prior to dis-
charge. See United Parcel Service, Inc. v. Administra-
tor, 209 Conn. 381, 387–88, 551 A.2d 724 (1988).
The referee stated that intentional falsification of
attendance or production work records constitutes
deliberate misconduct, regardless of whether the
employee was motivated by an intent to obtain pay for
time not worked or for work not performed. Deliberate
dishonesty or misrepresentation to the employer in the
form of falsely reporting work records with its wide-
spread implications for payroll and the monitoring of
employee productivity violates the standard of conduct
that an employer reasonably can expect of its employ-
ees. Lyon v. Plainfield, Dept. of Labor, Employment
Security Appeals Division, Board of Review Case No.
103-BR-00 (February 25, 2000). An employee who com-
mits an act of dishonesty in the course of her employ-
ment that adversely affects the employer’s interests or
violates the standards of behavior that an employer can
reasonably expect from an employee is guilty of wilful
misconduct. See Marangio v. Tynan, Dept. of Labor,
Employment Security Appeals Division, Board of
Review Case No. 997-BR-91 (August 20, 1991).
The referee found that the plaintiff’s testimony was
not credible and that the employer had met its burden
of proof that it had discharged the plaintiff for reasons
that constitute wilful misconduct. The referee found
that the plaintiff is disqualified from receiving unem-
ployment compensation benefits pursuant to § 31-236
(a) (2) (B) and reversed the adjudicator’s determination
that the plaintiff was eligible for unemployment com-
pensation benefits. The plaintiff filed an appeal to the
board on May 23, 2012. The board issued its decision
on October 5, 2012.
On the basis of the claims the plaintiff raised before
the board, the board came to the following conclusions.
In adjudicating eligibility for unemployment compensa-
tion benefits, including cases involving falsification, the
standard of proof is by a preponderance of the evidence,
not a higher quantum of proof as claimed by the plain-
tiff. See Osden v. Subway, Dept. of Labor, Employment
Security Appeals Division, Board of Review Case No.
1558-BR-06 (April 25, 2007); White v. Aero-Space Tech-
niques, Inc., Dept. of Labor, Employment Security
Appeals Division, Board of Review Case No. 197-BR-
74 (February 21, 1975). The referee applied the prepon-
derance of the evidence standard in the present case. At
an unemployment compensation hearing, an employer
may present hearsay evidence to meet its burden of
proof if the hearsay is reliable. The reliability test has
four factors: (1) the nature and atmosphere of the pro-
ceeding, (2) the availability of the witness declarant,
(3) the lack of bias or interest of the witness declarant,
and (4) the quality and probative value of the state-
ments. See Richardson v. Perales, 402 U.S. 389, 402–407,
91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Jarvis v. Bodine,
Dept. of Labor, Employment Security Appeals Division,
Board of Review Case No. 290-BR-87 (May 8, 1987).
The board acknowledged that firsthand testimony gen-
erally is more reliable and deserving of greater weight
than hearsay evidence. A referee, however, may not
elevate firsthand testimony that is not credible over
reliable hearsay evidence. See Dennis v. Autonote
Enterprises, Inc. Dept. of Labor, Employment Security
Appeals Division, Board of Review Case No. 20-BR-07
(March 9, 2007).
The board found that the referee did not rely exclu-
sively on hearsay evidence in making her determination,
but relied on credible firsthand testimony from the
employer’s program director, Carolyn Massoud-Leroy,
in determining that the plaintiff did not start the Febru-
ary 22, 2012 group session until after 10:18 a.m. and
ended it at 10:50 a.m. The board found that the referee’s
findings were supported by the record4 and that her
conclusion was consistent with those findings and the
provisions of the Workers’ Unemployment Compensa-
tion Act. The board affirmed the decision of the referee
and dismissed the plaintiff’s appeal.5
Thereafter, the plaintiff, represented by counsel, filed
a motion to open the decision of the board. In her
motion, the plaintiff claimed that the employer’s case
was ‘‘totally dependent on the alleged statement of a
security guard,’’ and that she was never shown a sworn
statement signed by the guard, and she was never told
that Massoud-Leroy had observed the events of Febru-
ary 22, 2012. The plaintiff claimed that the board’s deci-
sion was predicated on legal determinations that were
beyond her capacity as a lay person to comprehend
and that she could not knowingly have waived her right
to have the employer produce potential witnesses. The
plaintiff claimed that when she attended the hearing,
‘‘she erroneously understood that it was the [e]mploy-
er’s burden to present evidence in support of [its]
appeal.’’ She also claimed that she did not understand
that she should secure the advice and representation
of counsel and that she could object to Massoud-
Leroy’s testimony.
The board denied the plaintiff’s motion to open its
decision. The board stated that in her motion, the plain-
tiff attempted to supplement the record with an April
23, 2007 memorandum from the employer’s clinical
director and other memoranda dating to 2002. The
board noted the underlying record may not be supple-
mented without good cause. Although new evidence
may provide a basis for opening the record, the evidence
must be new and not discoverable through the exercise
of due diligence. See Regs., Conn. State Agencies § 31-
237g-35; Meehan Real Estate v. Administrator, Unem-
ployment Compensation Act, Superior Court, judicial
district of Windham, Docket No. CV-11-5005707-S (April
2, 2012). The board’s review of a referee’s decision is
limited to the existing record. The plaintiff also
attempted to raise new allegations outside of the
existing record, which she may not do. See Mayo v.
Administrator, Unemployment Compensation Act,
136 Conn. App. 298, 301–302, 44 A.3d 883 (2012).
The board stated that even if it had considered the
plaintiff’s new claims, they were not likely to alter its
conclusion. The board further stated that although a
party to an unemployment compensation proceeding
has the right to be represented by counsel, a party is
not provided a second hearing if the party failed to
obtain legal representation at the first hearing. See
Regs., Conn. State Agencies § 31-237g-11 (a).
The board found that the referee properly weighed
the evidence and considered hearsay evidence that she
found reliable. Despite the plaintiff’s claims that she
had witnesses who could testify on her behalf, she failed
to produce them at the hearing before the referee. The
board concluded on the basis of its review of the record
that the plaintiff failed to show that the ends of justice
required that the board’s decision be opened. The board
certified the record to the trial court.
The plaintiff filed an appeal in the trial court on Janu-
ary 3, 2013. On October 8, 2013, the administrator filed a
motion for judgment, which the plaintiff did not oppose.
The court granted the motion for judgment on the merits
on November 19, 2013. The plaintiff filed the present
appeal.
On appeal to this court, the plaintiff claims that fraud
must be proven by clear and convincing evidence and
that the referee erred when she determined that the
plaintiff committed fraud by falsifying billing records.
In her brief, the plaintiff presents this court with her
version of the facts and certain documents. It is well
known that appellate courts do not make factual or
credibility determinations. See Practice Book § 22-9;
see also, e.g. Hartney v. Hartney, 83 Conn. App. 553,
563, 850 A.2d 1098 (factual and credibility determina-
tions made by finder of fact), cert. denied, 271 Conn.
920, 859 A.2d 578 (2004).
‘‘The trial court’s standard of review with regard to
administrative appeals is limited. Such appeals are
heard by the court upon certified copy of the record
filed by the board. The court does not retry the facts
or hear evidence. It considers no evidence other than
that certified to it by the board, and then for the limited
purpose of determining whether the finding should be
corrected, or whether there was any evidence to sup-
port in law the conclusions reached. . . . The court’s
ultimate duty is to decide only whether, in light of the
evidence, the board of review has acted unreasonably,
arbitrarily, illegally, or in abuse of its discretion.’’ (Cita-
tion omitted; internal quotation marks omitted.) Ben-
nett v. Administrator, Unemployment Compensation
Act, 34 Conn. App. 620, 626, 642 A.2d 743 (1994).
The plaintiff has failed to demonstrate by means of
legal analysis that the board acted unreasonably, arbi-
trarily, illegally, or in abuse of its discretion. We there-
fore affirm the trial court’s judgment on the merits in
favor of the defendants.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The employer is not a party to this appeal, and only the administrator
filed a brief.
2
The unemployment adjudicator found that the plaintiff ‘‘showed poor
time management, but not wilful misconduct when she was late gathering
her group on [February 22, 2012].’’
3
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 . . . .’’
The statute defines wilful misconduct as ‘‘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 . . . .’’ General Statutes § 31-236 (a) (16).
4
The board added the following finding of fact to the record: ‘‘The employ-
er’s witness . . . Massoud-Leroy, can see people, including group members,
arriving and leaving from her office. She saw the [plaintiff] walk into the
lobby to meet her group at 10:18 a.m. on February 22, 2012, and viewed the
group members leaving at 10:50 a.m.’’
5
The referee found that ‘‘the employer provides substance abuse counsel-
ing to its clients [and that c]onducting counseling sessions for less than
the requisite period of time could potentially adversely impact the client’s
recovery.’’ The plaintiff objected to this finding as the employer did not
raise it as a defense and there was no evidence to support it.
The board concluded that regardless of whether the referee properly
determined that conducting counseling sessions for less than the requisite
period of time had a potentially adverse impact on a client’s recovery would
not alter the fact that the plaintiff falsified the clients’ records. Falsification
of an employer’s time records clearly is not in an employer’s interests.