Martinez v. Administrator, Unemployment Compensation Act

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
 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 gen-
eral, 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 defen-
dant 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 discre-
tion 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 Octo-
ber 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 Octo-
ber 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 can-
celled for all people scheduled on October 21, 2013,3
and, by approaching him, gave the plaintiff an opportu-
nity 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 appli-
cation for unemployment compensation benefits. On
November 21, 2013, the defendant ruled 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 Agen-
cies.5 Specifically, the defendant determined that the
employer had discharged the plaintiff for ‘‘deliberate
misconduct in wilful disregard of the employer’s inter-
ests 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 deter-
mined that the board’s ‘‘conclusion that the [plaintiff]
was guilty of wilful misconduct was an abuse of discre-
tion.’’ 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, notwith-
standing the plaintiff having failed to file a motion to
correct in accordance with Practice Book § 22-4. Specif-
ically, 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 Prac-
tice Book.’’ Practice Book § 22-9 (a) specifies that ‘‘[t]he
court does not retry the facts or hear evidence. It consid-
ers 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 conclu-
sions reached. It cannot review the conclusions of the
board when these depend upon the weight of the evi-
dence 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 cor-
rect] 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.’’ (Inter-
nal 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 deter-
mined 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 know-
ing 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 con-
cluding that the plaintiff had engaged in wilful miscon-
duct. 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 improp-
erly 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 ben-
efits to the Superior Court. To the extent that an admin-
istrative 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 appli-
cation of the law to the facts found or could not reason-
ably or logically have followed from such facts.
Although the court may not substitute its own conclu-
sions for those of the administrative board, it retains
the ultimate obligation to determine whether the admin-
istrative action was unreasonable, arbitrary, illegal or
an abuse of discretion.’’ (Internal quotation marks omit-
ted.) Resso v. Administrator, Unemployment Compen-
sation 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 individ-
ual’s employment . . . .’’ General Statutes § 31-236 (a)
(2) (B). Wilful misconduct is defined as ‘‘deliberate mis-
conduct in wilful disregard of the employer’s interest,
or a single knowing violation of a reasonable and uni-
formly 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 mis-
conduct’ 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 sub-
mitted 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, deter-
mined that the board abused its discretion in determin-
ing 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 cancella-
tion 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 miscon-
duct in deliberate disregard of the employer’s interest
and was consequently ineligible to receive unemploy-
ment 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 applica-
tion 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 sum-
mons for jury duty. The [plaintiff] in this matter did
respond to a jury summons, did report to the court-
house, and then was later discharged by his employer.’’
Pursuant to § 51-247a, an employer cannot discharge
an employee for responding 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 not related 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 stan-
dard for wilful misconduct.
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’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 mis-
conduct 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 Administra-
tor 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 Adminis-
trator 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 Administra-
tor 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 cancella-
tion 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.