DUBOIS v. ADMINISTRATOR, UNEMP. COMP. ACT, No. CV05-4008859S (Jul. 3, 2006)

ROBERT C. BRUNETTI, JUDGE.

This matter is before the court on the Administrator of the Unemployment Compensation Act's motion for judgment thereby dismissing the plaintiff's appeal from the employment security board of review's decision to deny the plaintiff's claim for unemployment compensation benefits. The court finds that the employment security board of review abused its discretion in denying the plaintiff's motion to reopen. Therefore the court denies the Administrator's motion for judgment, sustains the plaintiff's appeal on that basis, and returns the case to the board with the direction that the board grant the plaintiff's motion to reopen and remand the case to a referee for a hearing at which the plaintiff shall be afforded the opportunity to present the testimony of his witnesses.

As authorized by General Statutes § 31-249b, the plaintiff, Jeffrey R. DuBois, appeals from a decision of the employment security board at review (board) denying his claim for unemployment compensation benefits. The defendants are the Administrator of the Unemployment Compensation Act (administrator) and Karas Motors, Inc. (Karas Motors), the plaintiff's former employer.

The record indicates that the plaintiff worked full-time as a tow-truck driver for Karas Motors from July 24, 1998 to January 20, 2005, when be quit his job. The plaintiff subsequently filed a claim for unemployment compensation benefits in which he asserted that be left his job because Karas Motors was not adequately maintaining the vehicles he was driving, and this caused him to fear for his safety and the safety of others. Karas Motors opposed the plaintiff's claim, asserting that he left his CT Page 14368 job without good reason and that the company repairs its vehicles when necessary. On April 29, 2005, the administrator determined that the plaintiff was ineligible for benefits because he "left his job having no good cause attributable to his employer."

The plaintiff filed a timely appeal to the employment security appeals division on the ground, among others, that he had witnesses that could speak on his behalf at the next hearing. Following a de novo hearing on July 5, 2005, the appeals referee issued a decision dated July 14, 2005, in which she made the following relevant findings of fact: On January 20, 2005, the plaintiff's boss, Joe Karas, called the plaintiff on the plaintiff's cellular telephone because the plaintiff was late for work. When the plaintiff explained that he was late due to traffic, Karas got angry and yelled at the plaintiff. Later the same day, the plaintiff called Karas Motors, and told the secretary that he was quitting his job, but did not give a reason for quitting. While he was employed by Karas Motors, the plaintiff regularly drove a tow truck that was owned by the company. Although the truck had a small oil leak, the leak did not prevent the plaintiff from using it. Even though the plaintiff believed that Karas Motors did not properly maintain its vehicles, he did not have any accidents that resulted from improper maintenance.

The referee then reached the following conclusions of law: The plaintiff did not meet his burden of establishing that his job was unsuitable or that his employer's alleged improper maintenance of its vehicles triggered his decision to quit. Instead, the referee concluded that the plaintiff developed the maintenance issue after he quit, and that it was not the real reason for his resignation. In addition, the referee noted that the plaintiff had worked for the employer for more than six years under the same working conditions and did not provide a logical explanation for why it took him so long to quit. Thus, the referee concluded, the plaintiff voluntarily left suitable work without good cause attributable to his employer. Accordingly, the referee affirmed the administrator's determination that the plaintiff was disqualified from receiving benefits under § 31-236(a)(2)(A), and she dismissed the plaintiff's appeal.

The plaintiff appealed the referee's decision to the board, on the following grounds: the referee (1) failed to call the plaintiff's three witnesses to testify regarding the safety of CT Page 14369 the employer's vehicles; (2) failed to consider evidence that the working conditions threatened the plaintiff's safety; (3) failed to consider evidence that the employer illegally required the plaintiff to avoid motor vehicle inspection sites; and (4) allowed the employer to refer to matters that were not in evidence during its closing arguments.

On August 29, 2005, the board issued a decision in which it affirmed the referee's decision and dismissed the plaintiff's appeal. With respect to the referee's decision to preclude the plaintiff's witnesses from testifying, the board noted the following: in his opening statement, the plaintiff's attorney informed the referee that he wanted to present the testimony of three witnesses who had first-hand knowledge regarding the employer's vehicles; the referee deferred deciding whether she would hear the testimony to determine whether it would be necessary; the plaintiff did not mention the witnesses again; the witnesses did not testify; and the referee did not accept an offer of proof as to their testimony. The board concluded that "[a]lthough it was error by the referee not to at least take an offer of proof from the claimant regarding the testimony that his witnesses would have offered, we find, as a result, of our conclusion below, that the referee's error was harmless." In a footnote, the board added that "[t]he claimant may file a motion to reopen the board's decision showing the nature of the testimony that his witnesses would have offered if he believes it may affect the outcome of the case."

The board then reviewed the record and the law as to whether the plaintiff established that he had good cause attributable to his employer for leaving his job. The board agreed with the referee's conclusion that the plaintiff had not done so. In its review, the board mentioned that the plaintiff had accepted the condition of the employer's vehicles during the tenure of his employment and referred to the doctrine of acquiescence. In addition, and although the referee did not make a specific finding or conclusion as to the actual reason for the plaintiff's resignation, the board stated that "[t]he incident which precipitated the claimant's resignation was a telephone conversation while he was en route to work during which the owner reprimanded him for once again being tardy . . . The timing of the claimant's resignation, immediately after an angry confrontation with the employer's owner, leads us to agree with the referee that the claimant quit precipitously after being reprimanded for his continuing tardiness rather than because of CT Page 14370 his chronic dissatisfaction with the condition of the employer's vehicles."

Ultimately, the board determined that the referee's findings of fact were supported by the record and that her conclusion was consistent with her findings and with the law. Therefore, the board adopted the referee's findings of fact and decision, to which it added the following two findings of fact: (1) During the time that the plaintiff worked for Karas Motors, he brought some of his concerns regarding the vehicles to the employer's attention. Karas addressed the repairs that he thought presented safety issues, but he may have been slower to make repairs that did not affect the safety of the vehicles; and (2) the plaintiff could not point to a specific safety issue that led him to resign, did not have any accidents or receive any citations due to unsafe equipment, and could not remember the specific dates on which he complained to Karas Motors about safety issues.

On September 19, 2005, the plaintiff filed a timely motion to reopen the board's decision. In the motion, the plaintiff restated that the referee failed to take evidence from his three witnesses as to the condition of the employer's vehicles. Following the board's suggestion, the plaintiff added that the witnesses would have testified to the following: (1) "that Mr. DuBois complained about the safety of the respondent's vehicles throughout his employment with the respondent and did not acquiesce in the continuing decline of the truck's safety and (2) . . . that the condition of the trucks became worse over time and acquiescence cannot apply to a safety hazard that becomes worse over time. The witnesses would have indicated that this was the reason Mr. Dubois left his employment."

In a decision dated November 3, 2005, the board denied the plaintiff's motion to reopen. The board explained that "although the referee erred in not taking an offer of proof or testimony from the employer's witnesses, it was harmless error. Even if the claimant had legitimate concerns about the conditions of the equipment, he could point to no particular safety issue which led him to resign when he did. Rather, the claimant quit immediately after an angry confrontation during which the employer reprimanded him for being tardy." Thus, the board concluded, the plaintiff failed to establish that the ends of justice required the board to reopen its decision.

On December 2, 2005, the plaintiff filed the present action in CT Page 14371 which he appeals both the board's decision denying his motion to reopen as well as the board's underlying decision that he is ineligible to receive unemployment compensation benefits. According to the plaintiff, the board's decisions violate his constitutional or statutory rights, involved unlawful procedure and were erroneous, arbitrary or capricious or characterized by abuse of discretion. Specifically, he argues that (1) the board improperly denied his motion to reopen in that the appeals referee erred in not allowing his witnesses to testify and/or hear an offer of proof as to the content of the witnesses' testimony; and (2) in its final decision, the board improperly concluded that he voluntarily left his employment. The plaintiff asks the court to find that he is eligible to receive unemployment compensation benefits and/or to order that the appeals hearing be reopened so that his witnesses may testify. The board promptly met its obligation of filing a certified record of the proceedings. On January 17, 2006, the administrator filed a motion for judgment in which it asks the court to dismiss the appeal, accompanied by a memorandum in support. On January 18, 2006, the plaintiff filed an objection to the motion for judgment, accompanied by a memorandum in opposition. The administrator filed a reply to the plaintiff's objection on January 25, 2006.

"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 of review. The court must not retry 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 whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion." (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 276, 679 A.2d 347 (1996). Thus, the courts recognize that "[the] standard of review in administrative proceedings must allow for judicial scrutiny of claims such as constitutional error, jurisdictional error, or error in the construction of an agency's authorizing statute." CT Page 14372 Finkenstein v. Administrator, 192 Conn. 104, 113, 470 A.2d 1196 (1984).

The administrator's motion for judgment is premised on the argument that the plaintiff's appeal should be dismissed because the board's decision that he was disqualified from receiving unemployment compensation benefits in that he voluntarily left his employment without good cause attributable to his employer followed reasonably from the facts found and from the board's correct application of the law to those facts. The administrator also notes that the plaintiff did not file a motion to correct the board's findings.

The plaintiff objects to the motion on the ground that the appeals referee erred in not allowing the testimony of his witnesses, that this violated his right to due process, and, contrary to the board's determination, was not a harmless error. According to the plaintiff, his failure to file a motion to correct the board's findings is of no consequence as to this issue in that he properly addressed the issue in his motion to reopen.

In reply, the administrator argues that the board properly considered the plaintiff's due process argument in the context of his motion to reopen, and properly denied the motion on the ground that the referee's failure to hear the testimony of his witnesses constituted harmless error. In addition, the administrator argues that the testimony of the witnesses can no longer have any impact on the board's finding that the plaintiff left work voluntarily because this is a factual finding that the court cannot consider because the plaintiff did not file a motion to correct.

The court will first address the impact of the plaintiff's failure to file a motion to correct. Practice Book § 22-4 provides in relevant part that "[i]f 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 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 . . ." The courts have determined that a party's failure to file a motion to correct the board's findings of fact precludes the trial court from reviewing those findings on appeal. See JSF Promotions, Inc. v. Administrator, Unemployment Compensation CT Page 14373 Act, 265 Conn. 413, 422, 828 A.2d 609 (2003); and Calnan v. Administrator, Unemployment Compensation Act, 43 Conn.App. 779, 785, 686 A.2d 134 (1996). They have not decided, however, that a party's failure to file a motion to correct precludes the trial court from reviewing the board's conclusions of law. Moreover, "the failure of a claimant to file a motion to correct has not been considered fatal to the court's ability to review a decision to determine whether the board acted unreasonably or arbitrarily." Crenshaw v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Britain, Docket No. CV 99 0498448 (April 13, 2000, Shortall, J.) ( 27 Conn. L. Rptr. 80, 81).

In the present case, the referee's decision to not allow the plaintiff's witnesses to testify concerns the plaintiff's right to procedural due process, and, therefore, the board's denial of the plaintiff's motion to reopen involves a conclusion that the court may review despite the plaintiff's failure to file a motion to correct. Similarly, the testimony of the witnesses may still have an impact on this matter because the board's determination that the plaintiff left work voluntarily is a conclusion of law.

Accordingly, the court will consider whether the board properly denied the plaintiff's motion to reopen. The standard that governs such motions is set out in General Statutes § 31-249a(b), and the regulations that pertain thereto. Section 31-249a(b) provides in relevant part: "Any decision of the board may be reopened, vacated, set aside, or modified on the timely filed motion of a party aggrieved by such decision, or on the board's own timely filed motion, on grounds of new evidence or if the ends of justice so require upon good cause shown." Thus, "[t]he board's decision whether to open a case is thus discretionary, not mandatory." Kronberg v. Administrator, 36 Conn.Sup. 210, 211, 416 A.2d 186 (1980).

Section 31-237g-50 of the Regulations of Connecticut State Agencies provides in relevant part: "(a) . . . Each motion to reopen . . . should: . . . (2) describe all reasons and good cause for such motion and, if new evidence is alleged as such a reason, the following should be further specified: (A) the identity and nature of such alleged new evidence; (B) the reason why such alleged new evidence was not presented at the hearing previously scheduled; (C) the reason why such alleged new evidence is material to the case . . . CT Page 14374 "(d) The Board may deny any such motion based on upon the allegations of new evidence if the Board determines that the new evidence is unnecessarily duplicative or is not likely to affect the outcome of the case, or that the exercise of reasonable diligence by the moving party would have resulted in the presentation of such evidence at the hearing previously scheduled and the moving party does not otherwise show good cause for such party's failure to present such evidence."

Here, the plaintiff properly filed a motion to reopen on the ground that the referee did not allow him to present the testimony of his witnesses at the hearing. In addition, he properly specified the identity, nature and relevancy of the evidence and stated why he had not presented it at the hearing. The board acknowledged that the referee erred in not providing the plaintiff with the opportunity to present the testimony of his witnesses, or at least an offer of proof as to the nature of their testimony.

According to General Statutes § 31-244a, "The conduct of hearings . . . shall be in accordance with the rules of procedure prescribed by the board in regulations adopted pursuant to section 31-237g . . . The referees . . . shall not be bound by the ordinary common law or statutory rules of evidence or procedure. They shall make inquiry in such manner, through oral testimony and written and printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the provisions of this chapter." Nevertheless, the regulations that govern hearings before the referees indicate that the parties are entitled to present evidence, including the testimony of witnesses at the hearings. Specifically § 31-237g-22 provides in relevant part that "[i]t is the responsibility of each party to present all witnesses, testimony, evidence and argument material to such party's contentions concerning the appeal. Testimony and evidence personally presented at the hearing by individuals with actual personal knowledge of the facts in question is preferred." This is consistent with the general proposition that "[h]earings before administrative agencies . . . although informal and conducted without regard to the strict rules of evidence, must be conducted so as not to violate the fundamental rules of natural justice . . . Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine CT Page 14375 witnesses and to offer rebuttal evidence." (Internal quotation marks omitted.) Giaimo v. New Haven, 257 Conn. 481, 512-13, 778 A.2d 33 (2001).

At least two judges of the Superior Court have determined that an unemployment compensation referee's decision not to hear testimony from the claimant's witnesses at the claimant's hearing violated the claimant's right to due process. In Phillips v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Litchfield, Docket No. CV 97 0075003 (February 25, 1998, Pickett, J.T.R.), the plaintiff requested that the referee subpoena witnesses to his hearing in an effort to discredit his employer's claims with respect to the circumstances surrounding his discharge from employment. Specifically, the purpose of the proffered testimony was to show that one of the employer's witnesses was coerced into testifying favorably for the employer, that the employer was intoxicated on the evening of the discharge, and that the employer intended to discharge the plaintiff prior to any alleged willful misconduct. The referee, similarly to the referee in the present case, deferred his decision on the request so that he could decide whether the testimony of the witnesses would be relevant and material. As in this case, the plaintiff did not renew his request, and the witnesses did not testify. The referee concluded that the plaintiff was fired for wilful misconduct, and the board affirmed the referee's decision. The plaintiff then filed a motion to reopen, which he premised on the referee's failure to grant his request for subpoenas. The board determined that the evidence the plaintiff sought to present was not "relevant or material to a discharge issue" and that "the ends of justice did not require reopening of the Board's decision," and, therefore, denied the motion. Id.

On appeal, the trial court opined that "[i]t is difficult to understand how [the board's] determination [regarding relevancy and materiality] could be made without hearing witnesses . . . It is the judgment of the court that the request of the claimant to reopen should have been granted. Due process requires that a claimant should have the right to present his case in the most favorable light. The Board denied that right and therefore the appeal is sustained." Id. The court ordered that "the case is remanded with direction to grant the motion to reopen and conduct pretrial proceedings to hear such witnesses as are requested by the claimant." Id. CT Page 14376 In Foley v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 94 0542297 (May 21, 1996, Sheldon, J.), the plaintiff, who left work after she was criticized by her supervisor, sought to present the testimony of a co-worker regarding the reason for the plaintiff's resignation. Instead of permitting the witness to testify, the referee interviewed the witness and decided that her testimony would not be relevant or material. The referee ultimately determined that the plaintiff voluntarily left suitable work without sufficient cause. On review, the board rejected the plaintiff's argument that the referee's refusal to allow the testimony of her witness violated the plaintiff's right to due process, finding that she was "afforded all the process due her," and then affirmed the referee's decision.

On appeal to the Superior Court, the plaintiff again argued, inter alia, that the referee denied her right to due process of law by refusing to hear the testimony of her witness. The court concluded that, "[o]n the record of this appeal, the Board of Review's decision to reject the plaintiff's due process challenge to the exclusion of [the witness'] testimony from the hearing must itself be rejected as arbitrary, unreasonable, and an abuse of the Board's discretion. The Board's decision . . . ignores clear evidence that [the witness'] testimony would have impacted materially on the central issue in the plaintiff's case . . ." Id. The court explained that "the [r]eferee might well have found that the criticisms directed at [the plaintiff] were so totally unwarranted as to justify her voluntary departure from her job. Without [the witness's] testimony, the plaintiff was not given a full and fair opportunity to present her claim." Id. The court sustained the plaintiff's appeal, and "under the authority of General Statutes § 31-249b, orders the Board to remand the case to Referee for a new hearing at which testimony from [the plaintiff's witness] can be presented." Id. See also Cocove v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of Waterbury, Docket No. CV 93 0118875 (October 7, 1994, Pellegrino, J.) (based on pro se plaintiff's representation that he had witnesses that could testify to relevant matters, court decided to "provide him with another opportunity to be heard and will remand this matter to a referee for further hearing and findings of fact").

The court finds that a similar result is warranted in the present case. Here, the referee concluded that the plaintiff was CT Page 14377 disqualified from receiving benefits under § 31-236(a)(2)(A), which provides that "[a]n individual shall be ineligible for [unemployment compensation] benefits . . . (2)(A) [i]f, in the opinion of the administrator, the individual has left suitable work voluntarily and without good cause attributable to the employer . . ." According to our courts, "[a]n individual leaves suitable work for cause within the meaning of the statute, when he leaves employment for reasons which would impel the ordinary reasonable person to leave and which provide the individual with no reasonable alternative but to terminate his employment . . . As a matter of law, therefore, a claimant must show that his basis for leaving employment is objectively reasonable and that no reasonable alternative to termination exists." (Citation omitted; internal quotation marks omitted.) Arco Technology, Inc. v. Administrator, 25 Conn.App. 130, 135, 593 A.2d 154 (1991). See also §§ 31-236-19 and 31-236-22. The evidence that the plaintiff sought to present in the testimony of his witnesses pertained, among other things, to the issue of the condition of the employer's vehicles, which was the reason that the plaintiff gave for his resignation, as well as to the question of whether the plaintiff acquiesced to the condition of the vehicles, which was one reason that the referee gave for concluding that the plaintiff voluntarily quit his job. Therefore, the testimony could have affected the board's ultimate conclusion. Consequently, the court finds that the board abused its discretion in denying the plaintiff's motion to reopen in that the evidence that the plaintiff sought to present is not "unnecessarily duplicative or . . . [unlikely] to affect the outcome of the case]"; Regs., Conn. State Agencies § 31-237-50(d); and given, the plaintiff's right to due process, "the ends of justice so require." Regs., Conn. State Agencies § 31-237-50(a).

This conclusion is consistent with the purpose for the unemployment compensation act, which "is to provide income for the worker earning nothing because he is out of work through no fault or act of his own." Cervantes v. Administrator, 177 Conn. 132, 136, 411 A.2d 921 (1979). "[T]he act is remedial and, consequently, should be liberally construed in favor of its beneficiaries . . . Indeed, the legislature underscored its intent by expressly mandating that the act `shall be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualification in doubtful cases.' General Statutes § 31-274(c)." (Citations omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, CT Page 14378 Unemployment Compensation Act, supra, 238 Conn. 278.

For the foregoing reasons, the administrator's motion for judgment is denied and the plaintiff's appeal is sustained on the ground that the board of review should have granted the plaintiff's motion to reopen. In addition, as provided under § 31-249b, the court orders the matter returned to the board with the direction that the board grant the plaintiff's motion to reopen and remand the case to a referee for a hearing at which the plaintiff shall be afforded the opportunity to present the testimony of his witnesses.