Scraders v. Administrator, Unemployment Compensation Act

Brandon SCRADERS v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT et al.

No. CV175039014S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

August 1, 2018

UNPUBLISHED OPINION

OPINION

Wilson, J.

This is a statutory appeal from a decision of the Employment Security Board of Review affirming the dismissal of a claim for unemployment benefits. The claimant is Brandon Scraders (plaintiff), who was employed by Goodwill of Western &amp Northern Connecticut, Inc. (Goodwill) from April 17, 2016 through October 13, 2016. At the time his employment ended Scraders was a full-time store processor. On February 2, 2017, his claim was denied by the Administrator on the ground that Scraders "left his job for personal reasons. [He] found another job [and he] failed to prove good cause for leaving which was attributable to the employer." Record, p. 10. The Administrator determined that the plaintiff voluntarily left suitable employment without good cause attributable to his employer. The plaintiff timely appealed the Administrator’s determination to the Middletown office of the appeals division on February 8, 2017. The appeals division scheduled a hearing of the appeal for March 7, 2017, to which the plaintiff did not appear. By a decision issued on March 7, 2017, the appeals referee dismissed the plaintiff’s appeal for failure to attend the scheduled hearing and resulting failure to prosecute the appeal.

The record demonstrates that on March 8, 2017, a day after the scheduled hearing, the plaintiff contacted the appeals division and "advised that he missed the hearing because he was waiting for someone to call him. He spoke to someone in Waterbury Appeals who instructed him the day following his hearing that he was supposed to call Middletown to request telephonic participation." Id., p. 48. The following day, on March 9, 2017, and only two days after the referee’s dismissal of the plaintiff’s appeal, the plaintiff filed a motion to reopen the referee’s decision. In his motion to reopen, the plaintiff explained that he "was misinformed by the Bridgeport unemployment office ... [He] was told to expect a call for [his] hearing and was not aware of the number to register ..." Id., p. 22. On March 16, 2017, the appeals referee conditionally granted the motion to reopen and withdrew his decision. The appeals division scheduled a new hearing for April 27, 2017, to which the plaintiff and employer attended. On April 27, 2017, the appeals referee denied the plaintiff’s motion to reopen and reinstated his March 7, 2017 decision.

The referee concluded that the plaintiff did not have good cause for failing to attend the original referee’s hearing scheduled for March 7, 2017. The referee concluded that "[t]he board of review has consistently ruled that a party has not demonstrated good faith error where it has not acted diligently in contacting the appeals division within a reasonable period after the hearing." Record, p. 33. Citing precedent, the referee concluded that the "[plaintiff’s] failure to contact the appeals division at all on the day of the hearing, when he did not receive the call he expected, constitutes a lack of diligence [and] [u]nder these circumstances ... the [plaintiff] ... failed to show good cause for failing to attend the original referee’s hearing scheduled for March 7, 2017." (Emphasis added.) Id. The decision contains no discussion of the merits of the underlying denial of benefits.

The plaintiff filed a timely appeal of the referee’s denial of the motion to reopen to the board of review on May 4, 2017. Acting under its authority contained in General Statutes § 31-249,^[1] the board reviewed the documentary record on appeal and listened to the recording of the hearing held before the referee. The board’s decision, issued on July 5, 2017, reflects that the board conducted its own internal investigation regarding plaintiff’s "diligence" by supplementing the record with a copy of the administrator’s electronic message screen and a copy of the record of contact made by the plaintiff on March 8, 2017. According to this supplemental record, the board determined that there was no record to corroborate the plaintiff’s claim that he spoke to a representative at any time prior to the March 7, 2017 hearing, and that there was record of contact on March 8, 2017, the day after the referee’s hearing. Notwithstanding plaintiff’s record of contact with the appeals division on March 8, 2017 advising it that "he missed the hearing because he was waiting for someone to call him," the board concluded that the plaintiff did not exercise diligence, and thus he failed to demonstrate good cause for his nonappearance at the March 7, 2017 hearing.

The facts in the present case are almost identical to a recent decision issued by Judge Ecker, now Associate Supreme Court Justice, in Cousins v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New Haven, Docket No. CV-17-5038021 (December 28, 2017, Ecker, J.) [65 Conn.L.Rptr. 670], which this court finds instructive and worth noting, because of its thorough review and description of the appeals division process. In Cousins, like the plaintiff here, the plaintiff, Cousins failed to appear for his appeal hearing before the appeals referee. A notice of hearing was issued which scheduled a hearing for Cousins’ appeal to be held by telephone at 9:30 a.m., Monday, October 17, 2016. The notice contained a call-in number which instructed Cousins to call 15 minutes prior to the scheduled time. Cousins misunderstood the procedure, and did not call the appeals referee on October 17, 2016. Consequently, the appeal was automatically dismissed based on the appeals division’s general practice of denying all appeals following an applicant’s failure to attend a scheduled hearing unless a request to open is made on the same day as the scheduled hearing. Two days later, on October 19, 2016, Cousins moved to reopen the appeal on the ground that he did not realize he was supposed to place the call initiating the hearing. The motion was denied and Cousins timely appealed the denial to the board of review which affirmed the denial to reopen, also on procedural grounds.

With respect to the harsh result in Cousins, Judge Ecker, based on the record before him, noted the following: "For a man said to lack ‘diligence’ prosecuting his appeal rights, Calvin Cousins has been remarkably diligent, one could say, over the past eighteen months in his ongoing efforts to vindicate those rights. Cousins filed a timely claim for benefits; he timely appealed the Administrator’s denial of benefits; after missing the scheduled telephonic hearing with Referee Pashos, he timely sought to reopen [his] dismissal order; he personally appeared in Middletown at the appointed time for his rescheduled meeting, and presented his case to Referee Coleman; he timely appealed to the Board from Coleman’s dismissal of the appeal; and he timely appealed to this court from the Board’s dismissal of the appeal. He also appeared in court at the correct time and location to argue this appeal before the undersigned judge. Those efforts are all for naught, however, because Cousins made an honest mistake regarding hearing procedures, and then waited forty-eight hours to inquire about what had gone wrong.

"This seems like a harsh outcome. Cousins is guilty of nothing more than a single scheduling error. This proves he is human. On these facts, however, the oversight does not signify contempt for the system, disrespect for the rules, or anything of the kind; the error was isolated and. singular; it was never repeated, and is not part of a pattern of irresponsible conduct. To the contrary, Cousins acted to correct the mistake in relatively prompt fashion- though evidently not fast enough to satisfy the Board, which requires same-day remediation to warrant clemency. See Board Decision, at 2 (‘[T]he Board generally does not find good cause for the nonappearance where the party fails to call the appeals division on the day of the hearing ...’)." Id.

Judge Ecker ultimately affirmed the board’s decision and dismissed Cousins’ appeal "because the court is powerless, within the law, to give him the second chance that a more forgiving administrative regime would have provided." Id. Like Cousins, Scraders has been remarkably diligent in his ongoing efforts to vindicate and prosecute his appeal rights. Scraders filed a timely claim for benefits; he timely appealed the Administrator’s denial of benefits; after missing his hearing, he made contact with the appeals division on March 8, 2017, only one day after the original March 7, 2017, and explained that he mistakenly believed that he would receive a call from the appeals division; on March 9, 2017, only two days after the March 7, 2017 hearing, he timely sought to reopen the referee’s dismissal order; he personally appeared in Middletown at the appointed time for his rescheduled meeting and presented his case to referee Cutler; he timely appealed to the board from Cutler’s dismissal of the appeal; and he timely appealed to this court from the board’s dismissal of the appeal. Scraders also appeared in court at the correct time and location to argue this appeal before the undersigned judge. As correctly noted by Judge Ecker, "these efforts are all for naught however, because [Scraders] made an honest mistake regarding hearing procedures, and then waited, [really one day, March 8, 2017] to inquire about what had gone wrong [and only two days, on March 9, 2017, to move to reopen]." Id. However, this court, like the court in Cousins, is powerless, within the law to give Scraders a second chance. "The standard of judicial review under these circumstances is tightly circumscribed: ‘...