S.S. #: ***********

Employer's Name, Address & Reg. No.

E.R. #: *******

Board Case No.: 1045-BR-14

Referee Case No.: 797-CC-14

Date mailed to interested

parties: September 29, 2014 DECISION OF THE BOARD OF REVIEW

I. CASE HISTORY AND JURISDICTION

The administrator ruled the claimant eligible for unemployment benefits effective March 9, 2014, and notified the employer of its chargeability on April 10, 2014. On April 23, 2014, the employer appealed the administrator's decision to the Middletown office of the appeals division. The appeals division scheduled a hearing of the appeal for June 6, 2014, which the claimant and employer attended. By a decision issued on June 10, 2014, Associate Appeals Referee Karen Halpern Hager affirmed the administrator's ruling.

On June 26, 2014, the employer filed a timely motion to reopen the referee's decision. Referee Halpern Hager issued a decision denying the motion to reopen on June 26, 2014.

The employer filed a timely appeal to the board of review on July 16, 2014. Acting under authority contained in General Statutes § 31-249, we have reviewed the record in this appeal, including the recording of the referee's hearing.

II. ISSUES

The referee ruled that the employer discharged the claimant for reasons other than wilful misconduct in the course of his employment, and thus he was not disqualified from receiving unemployment compensation benefits. In support of this appeal from the referee's decision, the employer contends that the claimant did not always perform his work "100%," as he admitted to the referee. The employer maintains that it issued the claimant numerous warnings for his performance because of the occasions on which he was sitting down or failing to adequately perform his cleaning duties.⁽¹⁾

The issues before the board are whether the employer discharged the claimant for wilful misconduct in the course of his employment and whether the referee properly denied the employer's motion to reopen.

III. PROVISIONS OF LAW

Section 31-236(a)(2)(B) of the General Statutes provides that an individual shall be ineligible for benefits if he or she was discharged or suspended for wilful misconduct in the course of employment. Section 31-236(a)(16) of the General Statutes defines wilful misconduct, for purposes of the Connecticut Unemployment Compensation Act, as:

deliberate misconduct in wilful disregard of the employer's interests, 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 the result of the employee's incompetence and provided further, in the case of absence from work, 'wilful misconduct' 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 on three separate instances within the twelve month period preceding his or her discharge. Except with regard to tardiness, each instance in which an employee is absent for one day or two consecutive days without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances constitutes a 'separate instance.'

IV. FINDINGS OF FACT AND CONCLUSION OF LAW

The board is not bound by the referee's legal or factual conclusions. See Warrington v. Administrator and Andy's Footman, Inc., Board Case No. 1224-BR-88 (Decision on Claimant's Motion to Correct Findings, 8/11/89). The board conducts a de novo review of the record and can make an independent determination of facts and the law. See Middlesex Memorial Hospital v. Administrator, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 312592 (June 27, 1989).

The employer has the burden of proving wilful misconduct. The employer must provide a specific and detailed description of the alleged act or acts of misconduct that led to the discharge in order to establish that the claimant committed wilful misconduct. See Cox v. Seraphin Ford, Inc., Board Case No. 1883-BR-80 (4/2/81). The standard of proof in administrative proceedings is by a preponderance of the evidence. White v. Aero-Space Techniques, Inc., Board Case No. 197-BR-74 (2/21/75). A discharge resulting from a mere "culmination of dissatisfactions" is not disqualifying.

Misconduct resulting from inefficiency, carelessness, negligence, or errors in judgment lacks the requisite culpability because it does not evince an intentional, substantial disregard of the employer's interest or an intentional disregard of the duties, obligations and responsibilities the employee owes to his employer. See Duperry v. Administrator, 25 Conn. Sup. 409 (1964). However, a series of similar incidents of carelessness or negligence of sufficient degree or frequency may be evidence that an employee is indifferent to his duties and is acting in intentional or reckless disregard of the employer's interests. See United Parcel Service v. Administrator, 209 Conn. 381, 551 A.2d 724 (1988).

To find a pattern of wilful misconduct, we consider whether an individual has been put on notice that the particular conduct is detrimental to the employer's interests. We also consider the total number of instances of careless or negligent behavior documented in the record, recognizing that three or more similar acts must be identified to find a pattern of conduct. See Urban v. Truegreen Landcare, Board Case No. 905-BR-02 (12/5/02). Other relevant factors are the frequency with which the acts occurred, their nature, the gravity of the violations, and whether mitigating factors are present. Lauzier v. United Parcel Service, Board Case No. 5-BR-86 (4/26/89).

The record reveals that the claimant worked for the employer as a cleaner from May 6, 2013, through March 14, 2014, when the employer discharged him. The claimant's responsibilities included cleaning the lockers, bathrooms, and exercise studios of the employer's client health clubs. On August 7, 2013, Douglas Ferri, the employer's vice president, found the claimant sitting down when the claimant was supposed to be working. Ferri also found the claimant sitting in a closet when the claimant was supposed to be working on August 15, 2013.⁽²⁾

On November 26, 2013, David Pagan, the claimant's supervisor, found that the employer's client's showers and the floor under the shower mat were dirty. On December 6, 2013, Pagan inspected the client's facility and found that the showers were dirty. Pagan also found that the claimant did not clean the employer's client's bathroom and shower properly on January 19, 2014.

On March 1, 2014, Pagan reminded the claimant of the importance of cleaning a studio after a children's party on March 2, 2014. At the referee's hearing, Ferri testified that he inspected the studio on March 3, 2014, only to find a soda spill, candy wrappers, and hand-prints in the area that the claimant was responsible to clean. The claimant admitted that he probably missed the soda spill. He also claimed that he was performing his work to the best of his ability. When the referee asked the claimant how he accounted for failing to keep areas clean, the claimant testified: "I admit some things were my fault but not all of them. Me sitting in the closet was my fault and there is no way someone can clean 100%."

The referee found that the claimant's failure to clean the soda spill on March 2, 2014, was not the last incident in a pattern of negligence. We disagree. We do not require the incidents to be exactly alike to find that they are similar in nature. The employer has established that there were three or more incidents in which the claimant failed to clean the employer's client's showers and floors. The employer had placed the claimant on notice that his conduct was detrimental to its interests.

In light of the claimant's history of loafing, we do not find him credible in contending that he failed to perform his duties because the employer gave him extra duties or provided him inadequate time to complete his duties. In the absence of mitigating circumstances, we find that the employer discharged the claimant for a pattern of negligence that rose to the level of wilful misconduct in the course of his employment.

In so ruling, we adopt the referee's findings of fact, except that we substitute "March 3, 2014" for "March 14, 2014" in the referee's finding of fact no. 1. We do not adopt the first two sentences of the referee's finding of fact no. 5, which are unsupported by the record. We add the following sentences to the referee's finding of fact no. 5:

On August 7, 2013, Douglas Ferri, the employer's vice president, found the claimant sitting down when the claimant was supposed to be working. Ferri also found the claimant sitting in a closet when the claimant was supposed to be working on August 15, 2013. On November 26, 2013, David Pagan, the claimant's supervisor, found that the employer's client's showers and the floor under the shower mat were dirty.

We modify the referee's finding of fact no. 8 to read: "On March 2, 2014, the claimant failed to clean a soda spill, candy wrappers, and hand-prints in the exercise studio." We add the following sentence to the referee's finding of fact no. 9: "He also noticed candy wrappers on the floor and hand-prints on the mirror."

V. DISPOSITION AND ORDER

The referee's decision is reversed and the appeal is sustained. The claimant is disqualified from receiving unemployment compensation benefits effective March 9, 2014.

VI. PARTIAL WAIVER OF OVERPAYMENT

Pursuant to Section 31-273-4(b) of the Regulations of Connecticut State Agencies, we find that the referee's application of the law was unreasonable, and we waive any overpayment that was created by our reversal of the referee's decision.

The claimant is advised that he may still be charged with an overpayment for benefits that he received prior to the referee's decision. The administrator by separate determination will inform the claimant of the amount of this overpayment and the options for repaying it (including the possibility of a waiver of the overpayment). However, once this decision by the board becomes final, the claimant will not have another opportunity to contest the fact that he was overpaid benefits. The appeal rights printed below explain that this decision will become final in thirty days after the mailing of this decision unless the claimant files a further appeal.

BOARD OF REVIEW

_______________________________

Lynne M. Knox, Chair,

ES Board of Review

In this decision, Board Member Bruce Zeke Zalaski concurs.

LMK:AJP:mle

IF YOU WISH TO APPEAL THIS DECISION, YOU MUST DO SO BY OCTOBER 29, 2014. SEE LAST PAGE FOR IMPORTANT INFORMATION REGARDING YOUR APPEAL RIGHTS.

COPIES OF THIS DECISION PROVIDED TO:

BENEFIT PAYMENT CONTROL UNIT

Department of Labor

200 Folly Brook Boulevard

Wethersfield, CT 06109

1. The employer is attempting to supplement the record with a copy of the claimant's time cards, a copy of the employer's rules, and a copy of a January 25, 2014 incident report. The documents that the employer now seeks to present could have been produced at the referee's hearing and thus are not newly discoverable. Accordingly, we decline to supplement the record with the documents that the employer provided with its appeal to the board.

2. We have ruled that engaging in an unproductive use of work time or loafing during work hours constitutes wilful misconduct. Raty v. Administrator, Superior Court, judicial district of New Haven County at Waterbury, Docket No. 33383 (October 4, 1969); Reynolds v. Heating Oil Partnership, Board Case No. 1707-BR-08 (1/22/08).