FRANK ADDONA v. ADMINISTRATOR,
UNEMPLOYMENT COMPENSATION
ACT, ET AL.

(AC 30721)
Bishop, DiPentima and Beach, Js.*

Argued February 8 —officially released May 25, 2010
(Appeal from Superior Court, judicial district of New
Haven, Vitale, J.)

Richard T. Sponzo, assistant attorney general, with
whom, on the brief, were Richard Blumenthal, attorney
general, and Thomas P. Clifford III and Philip M.
Schulz, assistant attorneys general, for the appellant
(named defendant).

Frank Addona, pro se, the appellee (plaintiff).

Opinion

DiPENTIMA, J. The defendant administrator of the
Unemployment Compensation Act1 appeals from the
judgment of the trial court reversing the decision of
the employment security board of review (board). The
board had affirmed the decision of an appeals referee
of the employment security appeals division who had
found that the plaintiff, Frank Addona, was not entitled
to unemployment compensation benefits. On appeal,
the defendant claims that the court improperly determined
that the plaintiff had been denied due process
of law. We agree and, accordingly, reverse the judgment
of the trial court.

The record reveals the following facts. On March 7,
2007, the plaintiff, who had been employed full-time as
a plater since 1985, spoke with the union president
regarding upcoming negotiations with respect to a new
contract. On March 9, 2007, the plaintiff expressed his
displeasure with a part of the new contract.2 The plaintiff
was advised that he should remain in his assigned
work area and refrain from creating a disturbance. Later
that day, the plaintiff left his work area and initiated a
verbal conflict with his coworkers. As result of this
second incident, the plaintiff was suspended from his
employment with Sargent Manufacturing Company
(Sargent), for a period of seven weeks. The plaintiff
filed a claim for unemployment compensation benefits
for this seven week period, which the defendant denied
on March 29, 2007. The basis for the denial was that
the plaintiff had ‘‘violated policy by creating a disturbance
in the workplace, raising his voice, and speaking
in an inappropriate and offensive manner to co-workers,
and calling at least one co-worker an idiot.’’

The plaintiff appealed the denial of his request for
unemployment compensation benefits to the appeals
referee.3 See General Statutes § 31-237j.4 The referee
conducted a de novo hearing over two days.5 On April
19, 2007, the plaintiff, along with Tony Fasulo, a manager
at Sargent, and Jan Tantimonico, the human
resources manager of Sargent, appeared in person
before the referee. On May 1, 2007, however, the same
three individuals participated in the continued hearing
by telephone. Sargent did not present any of the witnesses
who directly had observed the plaintiff’s conduct
on the day that he was suspended. Instead, Fasulo and
Tantimonico testified as to what these witnesses had
reported to them. Thereafter, on May 4, 2007, the referee
affirmed the defendant’s decision to deny benefits. Specifically,
the referee set forth the following: ‘‘In this
case [Sargent] presented largely hearsay testimony.
However, Tantimonico’s firsthand testimony about her
receipt of complaints corroborates [Sargent’s] basic
allegations: the [plaintiff] became overly angry about
the union contract. After being warned to refrain from
making a disturbance, later in the day the [plaintiff]
revisited his views, creating a disturbance as revealed
by numerous employees’ complaints. The [plaintiff’s]
testimony corroborates [Sargent’s] assertion that he
resumed his angry tirade well after he initially spoke
with [fellow employee] Bobby Cox that morning.’’
(Emphasis altered.) The referee concluded that the
plaintiff unreasonably prolonged the argument, after
being directed to refrain from such conduct, and that
such conduct constituted wilful misconduct in the
course of his employment. Accordingly, the plaintiff
was disqualified from receiving unemployment compensation
pursuant to General Statutes § 31-236 (a)
(2) (B).

The plaintiff filed an appeal with the board pursuant
to General Statutes § 31-249. The plaintiff argued that
the referee improperly prevented him from testifying
in person and that there were technical difficulties with
his telephone testimony. The board adopted the findings
and conclusions of the referee,6 affirmed the decision
of the referee and dismissed the plaintiff’s appeal.
The board concluded: ‘‘Creating unwarranted disruption
in the workplace is wilful misconduct. . . . The
referee ruled that the incident which led to the [plaintiff’s
suspension] was not a single hot-headed incident,
because he found that the [plaintiff] continued to rail
against the union negotiating committee members even
when he was given the opportunity to calm down.
Although [Sargent] did not bring any firsthand witnesses
to the [plaintiff’s] conduct, [Sargent] produced
the testimony of a manager and [the] human resource
manager who received the complaints from several
named employees who were offended and upset about
the [plaintiff’s] becoming agitated and raising his voice
at them while they tried to work. The manager advised
the [plaintiff] not to go around yelling at people because
he would get in trouble and advised him not to leave
his work area. . . . The [plaintiff] admitted that he was
upset when a contractual provision was not included
in the union contract and that he raised his voice and
called another employee an idiot.’’

The plaintiff appealed from the board’s decision to
the Superior Court on August 3, 2007.7 The plaintiff
raised seven issues in his appeal: (1) whether the referee
improperly admitted into evidence his 2004 suspension
and several documents related to that incident; (2)
whether the referee and board improperly considered
various hearsay statements made by Fasulo and Tantimonico;
(3) whether the referee and board improperly
considered Fasulo’s statements despite the fact that
he contradicted himself; (4) whether the referee and
board’s reliance on hearsay statements of Fasulo and
Tantimonico resulted in a due process violation; (5)
whether the referee and board improperly failed to consider
Fasulo’s statements that he was aware that the
plaintiff often left his assigned area as part of his duties;
(6) whether the referee improperly conducted a part
of the hearing by telephone, despite the plaintiff’s objection,
as well as in an unprofessional manner; and (7)
whether the referee and board improperly concluded
that the plaintiff was suspended for wilful misconduct.
The court determined that the due process claim
was dispositive of the plaintiff’s appeal.8 Specifically, it
concluded that ‘‘in the circumstances of this case, the
plaintiff had met his burden of demonstrating that he
suffered substantial prejudice as the result of procedural
defects in the conduct of the hearing. The court
finds that the combination of a telephone hearing, conducted
over objection and without explanation, with
the admission of nearly exclusive hearsay, rises to the
level of a procedural due process violation. The court
finds that hearsay evidence constituted the substantial
basis for the denial of unemployment compensation
benefits to the plaintiff and concludes that said circumstance,
in combination with a telephone hearing, warrants
remedial action by the court.’’ Accordingly, it
sustained the appeal and ordered the board to remand
the case to a referee for a new hearing. This appeal
followed.9 Additional facts will be set forth as necessary.
As a preliminary matter, we note the unique place
this type of appeal holds in our appellate jurisprudence.
‘‘[A]ppeals from the board to the Superior Court are
specifically exempted from governance by General Statutes
§ 4-166 et seq., the Uniform Administrative Procedure
Act. All appeals from the board to the court are
controlled by [General Statutes] § 31-249b.’’ Calnan v.
Administrator, Unemployment Compensation Act, 43
Conn. App. 779, 783, 686 A.2d 134 (1996); see also Shah
v. Administrator, Unemployment Compensation Act,
114 Conn. App. 170, 175, 968 A.2d 971 (2009).Wealso are
mindful of the remedial nature of our state’s statutory
scheme of unemployment compensation. Church
Homes, Inc. v. Administrator, Unemployment Compensation
Act, 250 Conn. 297, 306, 735 A.2d 805 (1999).
This remedial purpose, however, does not support the
granting of benefits to an employee guilty of wilful
misconduct. Todd v. Administrator, 5 Conn. App. 309,
312, 497 A.2d 1035 (1985).

We now set forth our standard of review. ‘‘In appeals
under . . . § 31-249b, the Superior Court does not retry
the facts or hear evidence but rather sits as an appellate
court to review only the record certified and filed by
the board of review. Practice Book § 519 [now § 22-9].
The court is bound by the findings of subordinate facts
and reasonable factual conclusions made by the appeals
referee where, as here, the board of review adopted
the findings and affirmed the decision of the referee.
. . . Judicial review of the conclusions of law reached
administratively is also limited. The court’s ultimate
duty is only to decide whether, in light of the evidence,
the board of review has acted unreasonably, arbitrarily,
illegally, or in abuse of its discretion.’’ (Citations omitted;
internal quotation marks omitted.) Burnham v.
Administrator, 184 Conn. 317, 321–22, 439 A.2d 1008
(1981); see also Mattatuck Museum-Mattatuck Historical
Society v. Administrator, 238 Conn. 273, 276, 679
A.2d 347 (1996). Nonetheless, issues of law afford a
reviewing court a broader standard of review when
compared to a challenge to the factual findings of the
referee. See United Parcel Service, Inc. v. Administrator,
209 Conn. 381, 385, 551 A.2d 724 (1988).

In the present case, the court determined that the
combination of the hearsay testimony and the telephone
hearing resulted in a violation of due process. At the
outset, we note that § 31-237g-17 of the Regulations of
Connecticut State Agencies expresses a preference for
in-person hearings but allows for hearings by telephone.
10 Additionally, the board consistently has concluded
that telephone hearings do not violate due
process and are constitutional. See, e.g., Bizub v. Fitness
4000, LLC, Employment Security Appeals Division
Board of Review, Case No. 983-Br-06 (August 18, 2006)
(stating both federal and state court have ruled that
telephone hearings satisfy due process); Smith v.
Tempo Staffing, Employment Security Appeals Division
Board of Review, Case No. 124-BR-03 (March 5,
2003) (citing Gerardi v. Administrator, Unemployment
Compensation Act, Superior Court, judicial district
of Hartford-New Britain at Hartford, Docket No.
288425 [June 14, 1984]); Langevin v. Barrieau Express,
Inc., Employment Security Appeals Division Board of
Review, Case No. 196-BR-01 (March 16, 2001) (citing
case law and board decisions concluding that telephone
hearing are constitutional); Morales v. Dolce International
Heritage, Inc., Employment Security Appeals
Division Board of Review, Case No. 1535-BR-98 (October
20, 1998) (stating federal, state courts have determined
that telephone hearings not violative of due
process and are constitutional). Last, we note that sibling
authorities have concluded that telephone hearings
in the context of unemployment compensation benefits
are permissible and described them as ‘‘a pragmatic
solution, made possible by modern technology, which
attempts to reconcile the problem of geographically
separated adversaries with the core elements of a fair
adversary hearing . . . .’’ Slattery v. Unemployment
Ins. Appeals Board, 60 Cal. App. 3d 245, 251, 131 Cal.
Rptr. 422 (1976); see also Greenberg v. Simms Merchant
Police Service, 410 So. 2d 566 (Fla. App. 1982); Babcock
v. Employment Division, 72 Or. App. 486, 489–91, 696
P.2d 19 (1985).11

Looking at the second part of the court’s conclusion,
we begin by noting that hearsay testimony, so long as
it is sufficiently trustworthy, generally is admissible
in administrative hearings. Carlson v. Kozlowski, 172
Conn. 263, 266, 374 A.2d 207 (1977); see also Richardson
v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842
(1971). The General Assembly expressly has provided
that ‘‘[t]he referees and the board shall not be bound
by the ordinary common law or statutory rules of
evidence or procedure.’’ (Emphasis added.) General
Statutes § 31-244a. ‘‘Nonetheless, procedural due process
is a requirement of adjudicative administrative
hearings . . . and the admission of hearsay material
. . . without an opportunity to cross-examine is ordinarily
a deprivation of procedural due process.’’ Balkus
v. Terry Steam Turbine Co., 167 Conn. 170, 177, 355
A.2d 227 (1974). In the present case, none of the employees
present for the verbal conflicts involving the plaintiff
testified either in person or by telephone. Only
Fasulo and Tantimonico appeared for the two hearings,
and neither was present during either incident on March
9, 2007. The referee found that ‘‘[s]everal employees
informed . . . Tantimonico that they felt uncomfortable
about the [plaintiff’s] anger and use of profanity.’’
The plaintiff was unable to cross-examine these coworkers
and those involved in the verbal confrontation.
We also note that the referee’s written decision states:
‘‘In this case [Sargent] presented largely hearsay testimony.’’
12

Even if we assume, arguendo, that the plaintiff was
denied due process by the admission of and reliance
on unreliable hearsay evidence, we conclude that he
did not suffer material prejudice as a result. The plaintiff
himself testified that he engaged in a second confrontation
after the initial incident. The referee found that it
was that conduct that formed the basis for his conclusion
that the plaintiff had engaged in wilful misconduct13
and thus resulted in the plaintiff’s ineligibility to receive
unemployment compensation benefits pursuant to § 31-
236 (a) (2) (B). In other words, there was other evidence,
namely, the plaintiff’s own testimony, apart from
the hearsay evidence on which the referee found wilful
misconduct. We conclude, therefore, that the plaintiff
was not harmed by the referee’s consideration of the
hearsay evidence presented by Sargent. See Testone v.
C. R. Gibson Co., 114 Conn. App. 210, 219, 969 A.2d 179
(harmless error if record as a whole supports ultimate
conclusion of agency), cert. denied, 292 Conn. 914, 973
A.2d 663 (2009); see also Megin v. Zoning Board of
Appeals, 106 Conn. App. 602, 614, 942 A.2d 511, cert.
denied, 289 Conn. 901, 957 A.2d 871 (2008); Crabtree
Realty Co. v. Planning & Zoning Commission, 82
Conn. App. 559, 571, 845 A.2d 447, cert. denied, 269
Conn. 911, 852 A.2d 739 (2004).

In his brief, the plaintiff14 claims that he never admitted
to wilful misconduct and that there never was ‘‘an
angry tirade.’’ The referee, however, expressly found
that the plaintiff’s testimony corroborated Sargent’s
assertion that he had resumed his ‘‘angry tirade’’ well
after the initial incident. The plaintiff did not file a
motion for correction of the findings in accordance
with Practice Book § 22-4. Our case law is clear that
the failure to file such a motion acts as bar to any
further review of the facts found in an unemployment
compensation benefits hearing. See JSF Promotions,
Inc. v. Administrator, Unemployment Compensation
Act, 265 Conn. 413, 422–23, 828 A.2d 609 (2003); Reeder
v. Administrator, Unemployment Compensation Act,
88 Conn. App. 556, 558, 869 A.2d 1288, cert. denied, 275
Conn. 918, 883 A.2d 1245 (2005); Calnan v. Administrator,
Unemployment Compensation Act, supra, 43 Conn.
App. 784–85.

We conclude that the court improperly concluded
that the combination of the telephone hearing and the
use of hearsay evidence denied the plaintiff his right
to due process. We are persuaded that the record fails
to establish any infirmity as to the telephone hearing
and that any impropriety with respect to the hearsay
evidence was harmless as a result of the plaintiff’s
own testimony.

The judgment of the trial court is reversed as to the
plaintiff’s due process claim and the case is remanded
to the that court for consideration of the plaintiff’s
remaining claims.

In this opinion the other judges concurred.