Phillips v. Adm'r, Unemployment Comp. Act

157 Conn.App. 342

115 A.3d 1162

Elba PHILLIPS

v.ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT et al.

No. 36379.

Appellate Court of Connecticut.

Argued Jan. 22, 2015.

Decided May 19, 2015.

Elba Phillips, self-represented, the appellant (plaintiff).

Maria C. Rodriquez, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (named defendant).

LAVINE, MULLINS and SCHALLER, Js.

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 Centers, 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 unemployment benefits, which was granted by an unemployment adjudicator, who found that the plaintiff had been discharged for reasons that did not constitute wilful misconduct.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 conduct 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 employment is disqualified from receiving unemployment benefits if the discharge was for wilful misconduct. The employer bears the burden of proving that an incident of wilful misconduct triggered the employee's discharge. See Crebase v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Haven, Docket No. CV–03–0482963–S, 2008 WL 4149991 (August 13, 2008) (46 Conn. L. Rptr. 169 ). The final employee act that results in discharge is determined by the chronology 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 discharge. See United Parcel Service, Inc. v. Administrator, 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 widespread implications for payroll and the monitoring of employee productivity violates the standard of conduct that an employer reasonably can expect of its employees.

Lyon v. Plainfield, Dept. of Labor, Employment Security Appeals Division, Board of Review Case No. 103–BR–00 (February 25, 2000). An employee who commits an act of dishonesty in the course of her employment 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 unemployment compensation benefits pursuant to § 31–236(a)(2)(B) and reversed the adjudicator's determination that the plaintiff was eligible for unemployment compensation 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 compensation 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 plaintiff. 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 Techniques, Inc., Dept. of Labor, Employment Security Appeals Division, Board of Review Case No. 197–BR–74 (February 21, 1975). The referee applied the preponderance 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 proceeding, (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 statements. 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 generally 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 exclusively 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 February 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 Compensation 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 February 22, 2012. The plaintiff claimed that the board's decision 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]mployer's burden to present evidence in support of [its] appeal.” She also claimed that she...