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*********************************************** 
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 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 statute2 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 referee.’’ (Citations omitted; internal quotation marks omitted.) Addona v. Administrator,

Unemployment Compensation Act, supra, 121 Conn.

App. 361; see also Burnham v. Administrator, Unemployment 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 violation 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 opportunity 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 overwhelmed 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, Unemployment Compensation Act, supra, 133 Conn. App. 533;

see also Belica v. Administrator, Unemployment Compensation 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 Compensation 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 discretion. 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 misconduct in the course of the individual’s employment . . . .’’ General Statutes § 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 individual 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 personnel 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 conclude 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 administrative 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 Compensation Act, 133 Conn. 527, 532 n.3, 36 A.3d 269 (2012).

We conclude that the present case presents a situation where the administrator’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).