BR-1 # 2



STATE OF CONNECTICUT

Department of Labor

Employment Security Appeals Division

Board of Review

38 Wolcott Hill Road

Wethersfield, CT 06109

Telephone: (860) 566-3045 Fax: (860) 263-6977



IMPORTANTE - TENGA ESTO TRADUCIDO

INMEDIATAMENTE - TIEMPO LIMITADO PARA APELAR



Claimant's Name:



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

Employer's Name, Address & Reg. No.

TOWNE NURSING STAFF, INC.

1413 38th Street

Brooklyn, NY 11218-3613



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



Board Case No.: 1277-BR-14

Referee Case No.: 2015-DD-14

















Date mailed to interested

parties: October 9, 2014

DECISION OF THE BOARD OF REVIEW



I. CASE HISTORY AND JURISDICTION



By a decision issued on July 14, 2014, the administrator ruled the claimant ineligible for unemployment benefits effective June 22, 2014. On July 21, 2014, the claimant appealed the administrator's decision to the Bridgeport office of the appeals division. The appeals division scheduled a hearing of the appeal for August 13, 2014, which the claimant and employer attended. By a decision issued on August 19, 2014, Associate Appeals Referee L. Alston Singleton affirmed the administrator's ruling.



The claimant filed a timely appeal to the board of review on September 8, 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. ISSUE AND PROVISION OF LAW



In support of this appeal from the referee's decision, the claimant reiterates her contention that the employer had an ongoing problem with patients having cigarettes. The claimant maintains that the employer did not always act when a patient was doing something he or she was not supposed to do. The claimant also contends that the employer was inadequately staffed. The issue before the board is whether the employer discharged the claimant for wilful misconduct in the course of her employment pursuant to General Statutes 31-236(a)(2)(B).



III. FINDINGS OF FACT AND CONCLUSION OF LAW

Preliminarily, the claimant contends that she is a single mother struggling to find a job. We are sympathetic to the claimant's financial difficulties. However, we must determine whether she is eligible for benefits based upon the facts of the case and the provisions of the Connecticut Unemployment Compensation Act.



In her appeal to the board, the claimant alleges for the first time that the employer was inadequately staffed. We cannot consider new allegations that are outside of the existing record. See Walsh v. Administrator, Unemployment Compensation Act, Superior Court, judicial district of New London at Norwich, Docket No. 69754 (October 14, 1992). Thus, we decline to consider this new claim at this late stage of the proceedings.



We have ruled that the uniform enforcement requirement means that the employer has not condoned the claimant's failure to follow the established rules or policies, and has also imposed the same discipline on similarly situated employees who violate the same rule or policy. See Szadowski v. Aetna, Board Case No. 359-BR-99 (4/8/99); see also McKinnell v. Community Systems, Inc., Board Case No. 2076-BR-96 (12/23/97). A claimant who refutes an employer's representation that it uniformly enforces its rules must present reliable countervailing evidence. See Chambers v. Handy & Harman Refining Group, Inc., Board Case No. 1576-BR-97 (11/13/97).



The record reveals that the employer discharged the claimant for permitting a patient to retain cigarettes in violation of the employer's safety policy. The employer prohibits patients from possessing cigarettes inside the facility because of the potential for fire. The claimant was aware of the policy and she knowingly violated it in the absence of any compelling circumstances. The claimant intimates that the employer ignored the pervasive violations of the policy. However, there is no evidence that anyone in management knew and condoned the violations. We agree with the referee that the claimant knowingly violated a reasonable employer policy which was uniformly enforced and reasonably applied.



Based on the existing record, we find that the referee has adequately addressed the claimant's contentions. Moreover, the parties have not offered any argument in support of or in opposition to the appeal which would disturb the referee's findings of fact. We further find that the findings are supported by the record, and that the conclusion reached by the referee is consistent with those findings and the provisions of the Connecticut Unemployment Compensation Act. Accordingly, we adopt the referee's findings of fact and decision, except that we substitute "June 23, 2014" for "June 2014" in the referee's finding of fact no. 1. We add the following sentence to the referee's finding of fact no. 8: "The purpose of the policy was to prevent a fire at the facility at which the claimant worked, where some of the patients rely on supplemental oxygen." We also add the following finding of fact:



9. The claimant did not have a compelling reason to violate the employer's policy. Chadid Reichman, the employer's human resource manager, was aware of an ongoing problem with patients having lighters and cigarettes, but Reichman expected CNA's, such as the claimant, to confiscate them or otherwise address the issue.



IV. DISPOSITION AND ORDER



The referee's decision is affirmed and the appeal is dismissed. The claimant is disqualified from receiving unemployment compensation benefits effective June 22, 2014.



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 NOVEMBER 10, 2014. SEE LAST PAGE FOR IMPORTANT INFORMATION REGARDING YOUR APPEAL RIGHTS.