Adkins v. Civil Service Com'n

• Decision Date: 18 November 1982
• Docket Number: No. 15524,15524
• Citation: 298 S.E.2d 105,171 W.Va. 132
• Parties: Donna ADKINS v. CIVIL SERVICE COMMISSION and Department of Health.
• Court: West Virginia Supreme Court

Page 105

298 S.E.2d 105

171 W.Va. 132

Donna ADKINS v. CIVIL SERVICE COMMISSION and Department of Health.

No. 15524.

Supreme Court of Appeals of West Virginia.

Nov. 18, 1982.

Syllabus by the Court

"A final order of the Civil Service Commission, based upon findings not supported by the evidence, upon findings contrary to the evidence, or upon a mistake of law, will be reversed and set aside by this Court upon review." Syllabus Point 2, Drennen v. Department of Health, 163 W.Va. 185, 255 S.E.2d 548 (1979); Syllabus, Guine v. Civil Service Commission, 149 W.Va. 461, 141 S.E.2d 364 (1965).

Philip Creel, Appalachian Research and Defense Fund, Inc., Welch, for appellant.

Curtis G. Power, II, Asst. Atty. Gen., Charleston, for appellees.

PER CURIAM:

Donna Adkins, appellant, appeals from a November 23, 1981 final order of the West Virginia Civil Service Commission which held that the commission was without jurisdiction over Adkins' appeal because she had voluntarily resigned her position with the West Virginia Department of Health. Adkins contends that because she did not manifest an unequivocal intention to give up her position, the commission erred in finding that she had resigned and consequently dismissing her appeal. We agree with Adkins and reverse and remand.

Adkins was an institutional aide at Pinecrest Hospital in Beckley, West Virginia. She had been so employed for approximately one and one-half years at the time the alleged resignation occurred. During Adkins' tenure as an institutional aide at Pinecrest, Elsie McCray, R.N., was Director of Nursing. McCray was one of Adkins' supervisors. The record indicates that there may have been ill will between these individuals as early as 1980, the first year of appellant's employment. In February of 1981, appellant had submitted her resignation, but had been persuaded to withdraw it and remain at Pinecrest.

On June 13, 1981, Adkins injured her back while working at Pinecrest. As a result of this injury, she received a medical excuse for absence from work on June 14, 15, and 16 due to back pain. Adkins claimed that June 17 and 18 were her scheduled days off, and therefore she did not report for work. McCray reported that these days were not Adkins' scheduled days off.

According to Adkins, McCray called her on June 17 and demanded that she report to work that day if she wished to keep her job. Adkins initially agreed and then found herself unable to come to work due to her back pain. She then telephoned the hospital to report that she would not be there that evening. Adkins spoke to Harriet McCaleb a hospital telephone operator, and close friend of Adkins. It was during the course of this conversation that Adkins uttered her alleged oral resignation. Variations on the exact wording occur in the testimony, but McCaleb and Adkins both relate that after some conversation about her back pain and her conflict with McCray, Adkins stated to McCaleb, "I'm going to have to quit."

While Adkins admitted that she knew McCaleb was to report the conversation to her superiors at the hospital, ¹ she reported that the statement was made in the context of a long, open conversation with a friend. Adkins claims that she had no desire to resign when she made the statement, but felt she would be fired for not reporting to work.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It is not disputed that Jennifer Ann Meadows, McCray's secretary, called Adkins on June 18, 1981 to request a written resignation. At some time after that phone conversation, Adkins requested that she be permitted to meet with E.R. Eades, acting director of Pinecrest. This meeting was held on July 2, with Adkins, Eades and McCray. Accounts of what transpired at the meeting vary. McCray and Eades claim that they discussed the possibility of Adkins' return to work at Pinecrest. Adkins claims that the meeting consisted of attempts to procure her written resignation.

On July 6, McCray sent a letter to Adkins notifying her that the hospital had decided to accept her resignation of June 17. ² Adkins appealed this action to the Civil Service Commission, which took testimony on the matter at a November 10, 1981 hearing. The commission ruled that Adkins had voluntarily resigned her position at Pinecrest and that, consequently, it had no authority to consider the matter. ³

The issue in the case sub judice is whether the evidence supports the commission's finding that Adkins resigned her position. It is important to note Department of Health Regulation 3-2(c) (1980) governing oral resignations: "Oral Resignation: An oral resignation may be accepted if the employee has unequivocally indicated an intention to give up a position. Final determination as to the acceptance of an oral resignation shall be made by the Director of Health or a designated representative of the Director." (emphasis added) Certainly, the actions of the Department of Health must be in conformity with its own regulations. S...