Cragg v. Administrator, Unemployment Compensation Act

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LAUREN C. CRAGG v. ADMINISTRATOR,
UNEMPLOYMENT COMPENSATION
ACT ET AL.
(AC 36868)
Lavine, Sheldon and Prescott, Js.
Argued May 26—officially released October 13, 2015
(Appeal from Superior Court, judicial district of
Hartford, Hon. Robert F. Stengel, judge trial referee.)
Joseph A. La Bella, with whom was Linda Bulkov-
itch, for 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 case, the plaintiff, Lauren C. Cragg,
appeals from the judgment of the trial court rendered
in favor of the defendants, the Administrator of the
Unemployment Compensation Act (administrator) and
the Employment Security Appeals Division—Board of
Review (board).1 On appeal, the plaintiff claims that the
trial court improperly (1) granted the administrator’s
motion for judgment and (2) denied the plaintiff the
opportunity for oral argument before ruling on the
administrator’s motion. We affirm the judgment of the
trial court.
The following facts, as adopted by the board, and
procedural history are relevant to our disposition of
the plaintiff’s appeal. On June 22, 2012, the plaintiff
resigned from her employment with the city of New
London (city) because she was under the impression,
based on the New London City Council’s proposed bud-
get, that funding for her position was to be eliminated.
The plaintiff applied for unemployment compensation
benefits, which application was granted by the adminis-
trator, effective July 29, 2012. The administrator found
that even though the plaintiff had voluntarily left her
job, there was good cause for her to have left, attribut-
able to the city. The city filed a late appeal on October
15, 2012.
On November 13, 2012, an appeals referee (referee)
heard the city’s appeal. The referee made the following
findings of fact. The plaintiff had been employed by the
city as a full-time risk manager from October 23, 2010,
to July 2, 2012. The plaintiff, based on her review of
the minutes of a city council meeting held on May 29,
2012, concluded that the city council had considered a
proposal eliminating the funding for her position. The
city never indicated to her that her position was in
jeopardy, nor did the plaintiff inquire about the status
of her employment with her supervisor, Jeff Smith. Ber-
nadette Welch, the city’s personnel director, assured
the plaintiff that her position was not at risk. On June
19, 2012, the city council finalized its budget, which
included funding for the plaintiff’s position. On June 22,
2012, the plaintiff submitted her resignation, by e-mail,
effective July 2, 2012. The plaintiff resigned in anticipa-
tion of being discharged based on her mistaken belief
that her position was being eliminated. She did not
know, however, if her position was eliminated or when
the city would discharge her.
On November 14, 2012, the referee issued her deci-
sion. The referee first found good cause for the city’s
untimely appeal.2 The referee stated that pursuant to
General Statutes § 31-236 (a) (2) (A), an employee is
disqualified from receiving unemployment benefits if
she willingly left suitable work, without good cause
attributable to the employer. The referee concluded
that the plaintiff’s fear of future discharge did not afford
her good cause for leaving her employment and, there-
fore, she was ineligible for benefits pursuant to § 31-
236 (a) (2) (A). In doing so, the referee found that the
plaintiff failed to seek clarification from Welch or Smith,
regarding her employment status. The referee con-
cluded that the plaintiff’s failure to seek clarification,
along with the fact that discharge was not imminent,
disqualified the plaintiff from receiving benefits. In com-
ing to her conclusion, the referee stated that ‘‘[i]f it is
unclear whether the claimant will be discharged, it is
her burden to seek clarification of her status from the
employer’’ and ‘‘[q]uitting because of the mere possibil-
ity of future discharge generally will be considered a
voluntary separation without good cause attributable to
the employer.’’ The referee reversed the administrator’s
ruling and sustained the city’s appeal.
The plaintiff filed a timely motion to open the refer-
ee’s decision, which the referee denied.3 On December
21, 2012, the plaintiff filed an appeal from the referee’s
decision to the board. In her appeal, the plaintiff
requested a hearing before the full board. The board
issued its decision on April 5, 2012. On the basis of the
claims the plaintiff raised before the board, the board
came to the following conclusions. First, the board
denied the plaintiff’s request for an evidentiary hearing,
concluding that she ‘‘failed to show, pursuant to [§] 31-
237g-40 of the Regulations of Connecticut State Agen-
cies, that the ends of justice require that the board
receive additional evidence or testimony in order to
adjudicate the appeal.’’4 The board further concluded
that there was no basis for admitting the plaintiff’s
alleged new evidence and, therefore, that the referee
did not err in denying the plaintiff’s motion to open.
The board, after reviewing the record of the plaintiff’s
appeal, adopted the referee’s findings of fact, affirmed
the referee’s decision, and dismissed the plaintiff’s
appeal.
Pursuant to General Statutes § 31-249b, the plaintiff
appealed to the trial court from the decision of the
board.5 She did not file a motion to correct the board’s
findings pursuant to Practice Book § 22-4.6 On Novem-
ber 14, 2013, the administrator filed a motion for judg-
ment seeking the dismissal of the plaintiff’s appeal with
an attached memorandum of law in support of the
motion. The plaintiff then filed three forms requesting
oral argument on the motion for judgment, but she
did not appropriately claim her appeal for the short
calendar. Without holding a hearing, the court granted
the administrator’s motion for judgment. On April 24,
2014, the plaintiff moved for reargument, reconsidera-
tion, and articulation, which the court denied. This
appeal followed. During the pendency of this appeal,
the plaintiff filed a second motion for articulation pursu-
ant to Practice Book § 66-5, asking the trial court to
state the factual and legal basis for its ruling. The court
granted the motion and issued its written memorandum
of decision on July 22, 2014.
We begin by setting forth the applicable standard of
review. In appeals of this nature, the trial court does
not try the matter de novo. Acro Technology, Inc. v.
Administrator, 25 Conn. App. 130, 134, 593 A.2d 154(1991). ‘‘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.’’ (Inter-
nal quotation marks omitted.) Phillips v. Administra-
tor, Unemployment Compensation Act, 157 Conn. App.
342, 350, 115 A.3d 1162 (2015).
‘‘When considering an appeal from the board, we
have stated that [a] plaintiff’s failure to file a timely
motion [to correct] the board’s findings in accordance
with [Practice Book] § 22-4 prevents further review of
those facts found by the board. . . . In the absence of
a motion to correct the findings of the board, the court
is not entitled to 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 determin-
ing whether . . . there was any evidence to support in
law the conclusions reached.’’ (Internal quotation
marks omitted.) Davis v. Administrator, Unemploy-
ment Compensation Act, 155 Conn. App. 259, 262–
63,109 A.3d 540 (2015).
I
The plaintiff first claims that the court improperly
granted the administrator’s motion for judgment on the
merits. Specifically, she argues that the court improp-
erly affirmed the board’s decision, which the plaintiff
claims was arbitrary, unreasonable, and an abuse of
discretion. The plaintiff also claims that the court
improperly affirmed the board’s determination that the
referee did not error in denying her motion to open.
We disagree.
Section 31-236 (a) provides in relevant part: ‘‘An indi-
vidual shall be ineligible for benefits . . . (2) (A) If,
in the opinion of the administrator, the individual has
left suitable work voluntarily and without good cause
attributable to the employer . . . provided . . . no
individual shall be ineligible for benefits if the individual
leaves suitable work (i) for good cause attributable to
the employer, including leaving as a result of changes in
conditions created by the individual’s employer . . . .’’
The board, in its adoption of the referee’s findings,
found that the plaintiff voluntarily left her employment
without good cause attributable to the city, which in
turn disqualified her from receiving unemployment
compensation benefits. Specifically, the board and ref-
eree found that the plaintiff resigned in anticipation of
a funding cut and that she did not approach her supervi-
sor regarding her employment status. ‘‘Insofar as the
plaintiff’s appeal is directed to the factual findings of
the appeals referee, appellate review is limited to
determining whether these factual conclusions were
reasonably and logically drawn.’’ (Internal quotation
marks omitted.) Rivera v. Administrator, 4 Conn. App.
617, 619, 495 A.2d 1125 (1985). The referee credited,
and the board accepted, the city’s version of the events
over that of the plaintiff. The board found that ‘‘Welch
credibly testified that she spoke to the [plaintiff] on
May 30 or May 31, 2012, immediately following the [city]
council’s preliminary budget proposal, told her not to
worry, and explained that the budget was likely to pass.’’
Practice Book §22-9 (a) provides in relevant part that
the court ‘‘cannot review the conclusions of the board
when these depend upon the weight of the evidence
and the credibility of the witnesses.’’ Welch’s credible
testimony coupled with the board’s finding that ‘‘the
[city] council ultimately passed a budget that did not
cut funding for the [plaintiff’s] position’’ undermines
the plaintiff’s argument that she was eligible for benefits
due to the change in the conditions of her employment.
The plaintiff also claims that the court improperly
affirmed the board’s conclusion that the referee did not
err in denying her motion to open. ‘‘[I]n reviewing a
court’s ruling on a motion to open, reargue, vacate
or reconsider, we ask only whether the court acted
unreasonably or in clear abuse of its discretion. . . .
When reviewing a decision for an abuse of discretion,
every reasonable presumption should be given in favor
of its correctness. . . . As with any discretionary
action of the trial court . . . the ultimate [question for
appellate review] is whether the trial court could have
reasonably concluded as it did.’’ (Internal quotation
marks omitted.) Marquand v. Administrator, Unem-
ployment Compensation Act, 124 Conn. App. 75, 79–80,
3 A.3d 172 (2010), cert. denied, 300 Conn. 923, 15 A.3d
630 (2011). The plaintiff argues that she should have
been given the opportunity to present evidence to
impeach Welch’s credibility. Specifically, the plaintiff
contends that the city did not post her job position until
after the referee’s hearing and that the board and referee
erred in crediting Welch’s testimony. The board found
that ‘‘[t]he fact that the [plaintiff’s] position remained
unfilled following her resignation has no impact on
whether she voluntarily resigned with good cause attrib-
utable to the [city] on June 22, 2012.’’ In concluding
that the referee did not err in denying the plaintiff’s
motion to open, the board found that there was no basis
to supplement the record with the plaintiff’s alleged
new evidence.
Under the facts of this case, the referee’s finding, as
adopted by the board, that the plaintiff’s resignation
occurred when her discharge was not imminent, was
reasonably and logically drawn. The board also did not
abuse its discretion in affirming that the referee prop-
erly denied the plaintiff’s motion to open. The board’s
conclusions were supported by the subsidiary facts
found and were, therefore, not unreasonable or
arbitrary.
II
The plaintiff’s second claim is that the court failed to
hold oral argument before granting the administrator’s
motion for judgment. We agree that it was error for the
plaintiff to be denied oral argument. Under the limited
and narrow facts of this case, however, we conclude
that the court’s decision to grant the motion without
affording the plaintiff argument constituted harmless
error.
The following facts are relevant to our resolution of
this claim. On November 14, 2013, the administrator
filed a motion for judgment pursuant to Practice Book
§ 22-2 with an attached memorandum of law in support
of the motion.7 In its memorandum of law, the adminis-
trator requested that the court dismiss the plaintiff’s
appeal on the merits. The plaintiff filed three requests
for oral argument, each of which contested the factual
findings made by the referee and adopted by the board.
In the plaintiff’s first and second requests for oral argu-
ment, she listed the following grounds for her request:
‘‘The facts in the motion for judgment are not true based
on the untrue statements made by Bernadette Welch
while she was under oath at the hearing on November
12, 2013. Also, at the time of my departure, I believed
that the position of risk manager was being eliminated,
as stated in the minutes of the city council on May 29,
2010. In fact the position has never been filled nor
funded since I left the city on July 2, 2010.’’ In her third
request for oral argument, the plaintiff contested the
credibility of Welch’s testimony before the referee.
For reasons not entirely clear in the record, the
appeal was not placed on short calendar and no hearing
was held prior to the court’s granting the administrator’s
motion for judgment on the merits. In its memorandum
of decision dated July 22, 2014, the court found that
the administrator had established that the motion for
judgment should be granted.
A
We first consider the plaintiff’s claim that the court’s
failure to hold oral argument on the motion for judg-
ment constituted error. In support of this contention,
the plaintiff argues that she was entitled to a hearing
pursuant to chapter 22 of the Practice Book and the
court improperly granted the administrator’s motion
for judgment before affording her the opportunity to
be heard. We agree with the plaintiff.
The plaintiff’s claim requires us to construe the lan-
guage of the rules of practice and, therefore, our review
is plenary. See State v. Sheriff, 301 Conn. 617, 622, 21
A.3d 808 (2011). Practice Book § 22-9, entitled ‘‘Func-
tion of the Court,’’ provides in relevant part that unem-
ployment compensation appeals ‘‘are heard by the court
upon the certified copy of the record filed by the board.
. . . It considers no evidence other than that certified
by the board, and then for the limited purpose of
determining whether the finding should corrected, or
whether there was any evidence to support in law the
conclusions reached. . . . In addition to rendering
judgment on the appeal, the court may order the board
to remand the case to a referee for any further proceed-
ings deemed necessary by the court. . . .’’ (Emphasis
added.) ‘‘Plainly, then, the court’s primary function is
rending judgment on the appeal.’’ Law Offices of Neil
Johnson v. Administrator, Unemployment Compensa-
tion Act, 101 Conn. App. 782, 791, 924 A.2d 859 (2007).
In Law Offices of Neil Johnson v. Administrator,
Unemployment Compensation Act, supra, 101 Conn.
App. 790–91, this court held that a motion for judgment
on the merits is appropriate in unemployment compen-
sation appeals given the court’s ultimate function pursu-
ant to Practice Book § 22-9. When such adjudication is
the ultimate task of the court, the plaintiff is entitled
to oral argument.8
It is apparent that under Practice Book § 22-2, titled
‘‘Assignment for Hearing,’’ parties bringing appeals
from the decisions of the board to the trial court are
entitled to oral argument as to the merits of their appeal.
As a general proposition, it is self-evident that parties
should be afforded the right to be heard on the merits
of their appeal; this is fair, reasonable, and fundamental
to our adversarial system. Indeed, it is commonplace
for courts to hold hearings before ruling on motions
for judgment. See, e.g., Cuevas v. Administrator,
Unemployment Compensation Act, Superior Court,
judicial district of Fairfield, Docket No. CV-14-5030263-
S (May 15, 2015); Gonzalez v. Administrator, Unem-
ployment Compensation Act, Superior Court, judicial
district of Fairfield, Docket No. CV-14-5030264-S (March
25, 2015); Jensen v. Administrator, Unemployment
Compensation Act, Superior Court, judicial district of
Fairfield, Docket No. CV-14-5030265-S (March 25, 2015);
Rosa v. Administrator, Unemployment Compensation
Act, Superior Court, judicial district of Fairfield, Docket
No. CV-14-5030268-S (March 25, 2015). In the present
case, the plaintiff attempted to invoke her right to a
hearing through her three separate requests for oral
argument. The plaintiff argues that the court should not
have deprived her of oral argument merely because
‘‘she filed the wrong form, requesting argument rather
than claiming the case for a trial.’’9 In essence, the
plaintiff contends that she put the court on notice three
times that she wished to be heard on the merits of her
appeal and, therefore, did not waive her right to oral
argument. The court, nonetheless, dismissed the plain-
tiff’s appeal without affording her a hearing. We there-
fore conclude that the court should not have granted
the administrator’s motion for judgment absent oral
argument.
B
Given the procedural realities of this case, however,
the failure to permit the plaintiff to be heard was harm-
less error. See Wasilewski v. Commissioner of Trans-
portation, 152 Conn. App. 560, 570, 99 A.3d 1181 (2014)
(holding that plaintiff entitled to hearing as matter of
right but denial of hearing was nonetheless harmless
error). Although we conclude, under the particular cir-
cumstances of this case, that the error is harmless,
we, nonetheless, reiterate the importance of providing
litigants with the opportunity to be heard on the merits
of their appeals consistent with chapter 22 of the Prac-
tice Book and Law Offices of Neil Johnson v. Adminis-
trator, Unemployment Compensation Act, supra, 101
Conn. App. 782. In a future case, different circum-
stances might dictate a different result.
‘‘In order to constitute reversible error . . . the rul-
ing must be both erroneous and harmful. . . . The bur-
den of proving harmful error rests on the party asserting
it . . . and the ultimate question is whether the errone-
ous action would likely affect the result.’’ (Internal quo-
tation marks omitted.) Id., 570. In the present case, the
plaintiff’s requests for oral argument were based on her
desire to contest the factual findings of the board. The
plaintiff’s failure, however, to file a motion to correct
precluded further review of the board’s factual findings.
See Resso v. Administrator, Unemployment Compen-
sation Act, 147 Conn. App. 661, 665, 83 A.3d 723 (2014).
In addition, the trial court ‘‘cannot review the conclu-
sions of the board when these depend upon the weight
of the evidence and the credibility of the witnesses.’’
Practice Book § 22-9.
In conclusion, the court properly granted the adminis-
trator’s motion for judgment because the board’s deci-
sion was reasonable and supported by the record. We
cannot conclude that the board acted unreasonably,
arbitrarily, illegally or in abuse of its discretion. Under
the particular facts of this case, although the court
improperly granted the administrator’s motion for judg-
ment without holding oral argument, that error was
harmless.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s employer, the city of New London, also was named as a
defendant, but did not appear before the trial court and is not a party to
this appeal.
2
The referee found that the city did not receive the ‘‘Notice of Potential
Liability’’ and, therefore, concluded that the employer established good
cause for its late filing.
3
The plaintiff sought to present ‘‘new’’ evidence to challenge the city’s
reason for filing a late appeal and the city’s lack of effort to fill the plaintiff’s
position. The referee, in denying the motion to open, found that the alleged
new evidence could have been presented during the hearing before the
referee or was not relevant and unlikely to affect the result of the case.
4
In reaching its conclusion, the board stated: ‘‘The claimant is essentially
attempting to reargue her case. A party is not entitled to a new hearing for
the purpose of rearguing its case or presenting additional evidence unless
the party can show that it has evidence that is newly discovered or that the
party had good cause for failing to present evidence at the original hearing.
See Villano v. Administrator, [Dept. of Labor, Employment Security Appeals
Division, Board of Review] Case No. 629-BR-89 [October 12, 1989].’’
5
We note that the plaintiff represented herself before the trial court, but
was represented by appellate counsel before this court.
6
Practice Book § 22-4 provides in relevant part: ‘‘If the appellant desires
to have the finding of the board corrected, he or she must, within two weeks
after the record has been filed in the superior court, unless the time is
extended for cause by the board, file with the board a motion for the
correction of the finding and with it such portions of the evidence as he or
she deems relevant and material to the corrections asked for . . . .’’
7
This court held in Law Offices of Neil Johnson v. Administrator, Unem-
ployment Compensation Act, 101 Conn. App. 782, 791, 924 A.2d 859 (2007),
that a motion for judgment on the merits is appropriate in an unemployment
compensation appeal. This court explained that it saw ‘‘no good reason,
nor [had] the plaintiff demonstrated any, why a party should not be permitted
to claim an unemployment compensation appeal to the short calendar on
the merits, when such adjudication is the ultimate task of the court.’’ Id.8
We note that a motion for judgment on the merits in an unemployment
compensation appeal bears some similarity to motions seeking summary
adjudication in civil matters listed under Practice Book § 11-18. Section 11-
18, entitled ‘‘Oral Argument of Motions in Civil Matters,’’ provides in relevant
part that ‘‘[o]ral argument is at the discretion of the judicial authority except
as to motions to dismiss, motions to strike, motions for summary judgment,
motions for judgment of foreclosure, and motions for judgment on the report
of an attorney trial referee and/or hearing on any objections thereto. For
those motions, oral arguments shall be a matter of right . . . .’’
9
‘‘This court . . . has stated that it has always been solicitous of the
rights of pro se litigants and, like the trial court, will endeavor to see that
such a litigant shall have the opportunity to have [her] case fully and fairly
heard so far as such latitude is consistent with the just rights of any adverse
party. . . . Although we will not entirely disregard our rules of practice,
we do give great latitude to pro se litigants in order that justice may both
be done and be seen to be done. . . . For justice to be done, however, any
latitude given to pro se litigants cannot interfere with the rights of other
parties, nor can we disregard completely our rules of practice.’’ (Emphasis
omitted; internal quotation marks omitted.) Belica v. Administrator, Unem-
ployment Compensation Act, 126 Conn. App. 779, 787, 12 A.3d 1067 (2011).