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ORLANDO MARTINEZ v. ADMINISTRATOR,

UNEMPLOYMENT COMPENSATION

ACT, ET AL.

(AC 37958)

Alvord, Prescott and Mihalakos, Js.

Argued October 18, 2016—officially released January 24, 2017

(Appeal from Superior Court, judicial district of

Waterbury, Hon. Joseph H. Pellegrino, judge trial

referee.)

Thomas P. Clifford III, assistant attorney general,

with whom, on the brief, were George Jepsen, attorney

general, and Philip M. Schultz, assistant attorney general, for the appellant (named defendant).

Orlando Martinez, self-represented, the appellee

(plaintiff).
Opinion

MIHALAKOS, J. The defendant Administrator of the

Unemployment Compensation Act1 appeals from the

judgment of the trial court sustaining the appeal by the

plaintiff, Orlando Martinez, and reversing the decision

of the Employment Security Board of Review (board)

denying benefits to the plaintiff. On appeal, the defendant claims that the court improperly (1) disregarded

the factual findings of the board although no motion

to correct was filed as required by Practice Book § 22-

4, and (2) determined that the board abused its discretion in concluding that the plaintiff engaged in wilful

misconduct. We agree and, accordingly, reverse the

judgment of the trial court.

The following facts, as found by the appeals referee

(referee) and adopted by the board,2 are relevant to

this appeal. The plaintiff worked as a full-time machine

operator for Polar Industries, Inc. (employer), for

approximately twenty years. The employer does not

grant sick pay for its employees, but it does pays its

employees for days spent attending jury duty. On October 21, 2013, the plaintiff was scheduled to attend jury

duty at the Superior Court in Waterbury and reported

to the courthouse that morning. Jury duty, however,

was cancelled as of 9 a.m. on October 21. Instead of

reporting to work, the plaintiff went home from the

courthouse because he was not feeling well. He fell

asleep and did not awake until 5:40 p.m., after his shift

had ended.

When the plaintiff arrived at work at 8 a.m. on October 22, 2013, he did not inform anyone in management,

including the employer’s manager of administration,

Michael Accuosti, that jury duty had been cancelled and

that he had gone home from the courthouse because he

did not feel well. At approximately 10 a.m., Accuosti

approached the plaintiff regarding his October 21

absence, and the plaintiff told Accuosti that he had

attended jury duty. The plaintiff did not inform Accuosti

at that time, either, that jury duty had been cancelled.

Accuosti knew, however, that jury duty had been cancelled for all people scheduled on October 21, 2013,3

and, by approaching him, gave the plaintiff an opportunity to voluntarily admit the cancellation. Thereafter,

Accuosti told the plaintiff that he was discharged from

the employer for dishonesty related to his failure to

inform the management team that jury duty had been

cancelled.

Following his termination, the plaintiff filed an application for unemployment compensation benefits. On

November 21, 2013, the defendantruled that the plaintiff

was disqualified from receiving benefits pursuant to

General Statutes § 31-236 (a) (2) (B)4 and Section 31-

236-26a of the Regulations of Connecticut State Agencies.5 Specifically, the defendant determined that the
employer had discharged the plaintiff for ‘‘deliberate

misconduct in wilful disregard of the employer’s interests as he deliberately lied to his employer about his

attendance at jury duty until he was pressed into giving

a correct answer.’’ The plaintiff filed a timely appeal

on December 2, 2013, and a hearing was held before a

referee. On January 13, 2014, the referee affirmed the

defendant’s decision. The plaintiff filed a timely appeal

to the board on January 29, 2014. On March 14, 2014,

the board adopted the referee’s findings of facts, with

limited modifications and additions, and affirmed the

referee’s decision.

The plaintiff then appealed to the Superior Court

pursuant to General Statutes § 31-249b. The defendant

filed a motion for judgment asking the court to dismiss

the plaintiff’s appeal. The defendant argued that the

facts found reasonably supported the board’s decision,

that the law was correctly applied to the facts, and that

no motion to correct the findings of the board was filed.

The court denied the defendant’s motion and determined that the board’s ‘‘conclusion that the [plaintiff]

was guilty of wilful misconduct was an abuse of discretion.’’ Accordingly, the court sustained the plaintiff’s

appeal and reversed the decision of the board. This

appeal followed.

I

The defendant first claims that the court improperly

disregarded the factual findings of the board, notwithstanding the plaintiff having failed to file a motion to

correct in accordance with Practice Book § 22-4. Specifically, the defendant argues that ‘‘[i]t is the board’s

finding of facts, in the absence of a motion to correct,

to which the court was bound in determining whether

or not the board’s conclusions from those facts were

reasonable,’’ and that ‘‘the court improperly adjudicated

questions of fact, and substituted its own conclusions

for those of the board.’’ We agree.

Pursuant to § 31-249b, ‘‘any finding of the referee or

the board shall be subject to correction only to the

extent provided by section 22-9 of the Connecticut Practice Book.’’ Practice Book § 22-9 (a) specifies that ‘‘[t]he

court does notretry 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 support in the law the conclusions reached. It cannot review the conclusions of the

board when these depend upon the weight of the evidence and the credibility of witnesses.’’

Practice Book § 22-4 provides the mechanism for the

correction of the board’s findings. It states that ‘‘[i]f

the [plaintiff] 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 . . . 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 . . . .’’

‘‘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 new evidence.’’ (Internal quotation marks omitted.) Resso v. Administrator,

Unemployment Compensation Act, 147 Conn. App. 661,

665, 83 A.3d 723 (2014).

In the present case, the plaintiff failed to file a motion

to correct with the board, a necessary prerequisite to

a challenge of the board’s findings. Despite no motion

being filed, the court, in examining the board’s decision,

reviewed the evidence to determine its sufficiency and

its credibility, and then substituted its own conclusions

for those of the board. Specifically, the court determined that there was no finding that, if jury duty was

cancelled, the employer required its employees to

return to work. In addition, the court determined that

the record did not indicate whether the plaintiff went

to the court and was told jury duty was cancelled or at

what time the plaintiff was told jury duty was cancelled.

Moreover, the court determined that Accuosti’s knowing that jury duty was cancelled on October 21 because

he looked it up on the judicial branch website was not

credible.6 Absent a motion to correct, the court did not

have the authority to attack the findings of the board

and make these new findings.

II

The defendant next claims that the court improperly

determined that the board abused its discretion in concluding that the plaintiff had engaged in wilful misconduct. Specifically, the defendant argues that the record

is replete with sufficient evidence to support board’s

finding of wilful misconduct, and that the trial court

applied and incorrect standard of review and improperly concluded that the plaintiff’s discharge violated

public policy as set forth in General Statutes § 51-247a.

We agree.

We first set forth the standard of review and the

relevant legal principles. ‘‘General Statutes § 31-249b

provides claimants with the right to appeal a decision

of the board denying unemployment compensation benefits to the Superior Court. 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 whetherthe administrative action was unreasonable, arbitrary, illegal or

an abuse of discretion.’’ (Internal quotation marks omitted.) Resso v. Administrator, Unemployment Compensation Act, supra, 147 Conn. App. 664–65.

The determination of eligibility for unemployment

compensation benefits is made pursuant to the statutes

and regulations governing the program. An individual

shall be ineligible for benefits ‘‘if, in the opinion of the

administrator, the individual has been discharged . . .

for . . . wilful misconduct in the course of the individual’s employment . . . .’’ General Statutes § 31-236 (a)

(2) (B). Wilful misconduct is defined 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, provided such violation is not a

result of the employee’s incompetence and provided

further, in the case of absences from work, ‘wilful misconduct’ means an employee must be absent without

either good cause for the absence or notice to the

employer which the employee could reasonably have

provided under the circumstances for three separate

instances within a twelve-month period. . . .’’ General

Statutes § 31-236 (a) (16); see also Regs., Conn. State

Agencies § 31-236-26a.

In the present case, the court determined that the

facts in the record, as found by the referee and adopted

with modifications by the board, and the evidence submitted were insufficient to establish a finding of wilful

misconduct. Specifically, the court determined that

‘‘there are not facts or evidence submitted that there

was a rule of the employer that if an employee was

called for jury duty or that if jury duty was cancelled

that the employee must report that to the employer

and/or return to work. There was no evidence of such

a rule or that the [plaintiff] knew that he should have

informed his employer that jury duty was cancelled

and/or return to work.’’ The court, therefore, determined that the board abused its discretion in determining that the plaintiff’s actions constituted wilful

misconduct.

After a thorough review of the certified record, we

are persuaded that the conclusion of the referee and

the board that the plaintiff’s discharge was the result

of an act of wilful misconduct reasonably and logically

could have followed from the facts found in this case.

The board found that the plaintiff’s October 21 jury

duty was cancelled and that he subsequently did not

report to work or contact his employer. The board also
found that the following day the plaintiff arrived at

work at 8 a.m., and, despite being given the opportunity

early in his shift to tell management of the cancellation,

the plaintiff did not inform his employer that jury duty

had been cancelled. Instead, he told Accuosti that he

had attended jury duty, and only admitted that it had

been cancelled when he was later told by Accuosti that

Accuosti had learned of the cancellation. Moreover,

the board found that the plaintiff was aware that the

employer would pay the plaintiff if the employer

believed that the plaintiff had attended jury duty.7

The plaintiff did not inform Accuosti of the cancellation when prompted, but instead chose to engage in

deceptive conduct that he knew would result in his

receiving pay for October 21. The plaintiff, by failing to

inform his employer that jury duty had been cancelled,

deprived his employer of an opportunity to protect its

own interests and acted in a manner inconsistent with

the standards of behavior reasonably expected by his

employer. See Regs., Conn. State Agencies § 31-236-26a.

The board reasonably could have concluded, therefore,

that the plaintiff intentionally engaged in wilful misconduct in deliberate disregard of the employer’s interest

and was consequently ineligible to receive unemployment compensation benefits. Accordingly, our review

of the record persuades us that the decision of the

board that the plaintiff’s actions amounted to wilful

misconduct was logically supported by the evidence,

and was not unreasonable, arbitrary, illegal, or an abuse

of the board’s discretion.

We next briefly address the court’s improper application of the public policy contained within the provisions

of § 51-247a. The court found that ‘‘public policy and

the provisions of . . . § 51-247a preclude an employer

from discharging an employee who responds to a summons for jury duty. The [plaintiff] in this matter did

respond to a jury summons, did report to the courthouse, and then was later discharged by his employer.’’

Pursuant to § 51-247a, an employer cannot discharge

an employee forresponding to a summons for jury duty.

The present case, however, is not a case of employer

retaliation against the plaintiff for attending jury duty.

In fact, in its decision, the board clearly found that the

discharge was notrelated to the plaintiff’s absence from

work on October 21. Instead, at issue was whether the

plaintiff’s dishonesty about the reason for his absence,

claiming that he had attended jury duty, met the standard for wilful misconduct.

The judgment is reversed and the case is remanded

with direction to renderjudgment affirming the decision

of the Employment Security Board of Review.

In this opinion the other judges concurred.

1 The plaintiff’s employer, Polar Industries, Inc., and the Employment

Security Appeals Division Board of Review were named as defendants, but

did not appear before the trial court and have not participated in this

appeal. We, therefore, refer in this opinion to the Administrator of the
Unemployment Compensation Act as the defendant.

2 The board adopted the referee’s findings with one modification and

one addition.

3 Accusoti knew of the cancellation because he had looked it up on the

judicial branch website.

4 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 misconduct in the course of the individual’s employment . . . .’’

5 Section 31-236-26a of the Regulations of Connecticut State Agencies

provides in relevant part: ‘‘In order to establish that an individual was

discharged or suspended for deliberate misconduct in wilful disregard of

the employer’s interest, the Administrator must find all of the following:

‘‘(a) Misconduct. To find that any act . . . is misconduct the Administrator must find that the individual committed an act . . . which was contrary

to the employer’s interest, including any act . . . which is not consistent

with the standards of behavior which an employer, in the operation of his

business, should reasonably be able to expect from an employee.

‘‘(b) Deliberate. To determine that misconduct is deliberate, the Administrator must find that the individual committed the act . . . intentionally or

with reckless indifference for the probable consequences of such act . . . .

‘‘(c) Wilful Disregard of the Employer’s Interest. To find that deliberate

misconduct is in wilful disregard of the employer’s interest, the Administrator much find that:

‘‘(1) the individual knew or should have known that such act . . . was

contrary to the employer’s expectation or interest; and

‘‘(2) at the time the individual committed the act . . . he understood that

the act . . . was contrary to the employer’s expectation or interest and he

was not motivated or seriously influenced by mitigating circumstances of

a compelling nature. . . .’’

6

In its order, the court states that the plaintiff’s knowing of the cancellation because he looked it up on the judicial branch website was not credible.

It was Accuosti, however, that looked up the cancellation, not the plaintiff.

Irrespective of the error, the court did not have the authority to review the

credibility of the evidence.

7

In its decision, the board relied in part on a prior decision, Hafersat v.

Veam Division, Dept. of Labor, Employment Security Appeals Division,

Broad of Review Case No. 12-BR-02 (February 6, 2002). In Hafersat, the

board found that the claimant engaged in deliberate misconduct by falsely

claiming that he attended jury duty in order the receive a day’s pay or

preserve sick and vacation time for future use, and thus, the claimant was

ineligible for unemployment compensation benefits.