Adkins v. Gatson

• Decision Date: 17 November 2005
• Docket Number: No. 32509.,32509.
• Court: West Virginia Supreme Court
• Parties: Cindy L. ADKINS, Cynthia S. Cooper and Billie J. Gill, Appellants, v. Cathy S. GATSON, Clerk of the Circuit Court of Kanawha County; Board of Review, West Virginia Bureau of of Employment Programs; Commission, Bureau of Employment Programs; City of Hinton, Appellees.

Page 769

624 S.E.2d 769

Cindy L. ADKINS, Cynthia S. Cooper and Billie J. Gill, Appellants, v. Cathy S. GATSON, Clerk of the Circuit Court of Kanawha County; Board of Review, West Virginia Bureau of of Employment Programs; Commission, Bureau of Employment Programs; City of Hinton, Appellees.

No. 32509.

Supreme Court of Appeals of West Virginia.

Submitted: September 21, 2005.

Filed: November 17, 2005.

Syllabus by the Court

1. "The findings of fact of the Board of Review of the [West Virginia Bureau of Employment Programs] are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong. If the question on review is one purely of law, no deference is given and the standard of judicial review by the court is de novo." Syllabus point 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994).

2. "This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment." Syllabus point 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965).

William D. Turner, Pyles, Haviland, Turner & Smith, Lewisburg, for Appellants.

Paul L. Frampton, Jr., Atkinson, Mohler & Polak, for Appellee City of Hinton.

Darrell V. McGraw, Attorney General, Christie S. Utt, Assistant Attorney General, Charleston, for Appellee Board of Review, West Virginia Bureau of Employment Programs.

Angela J. Ball, Pullin, Fowler & Flanagan, Beckley, for Sanitary Board of the City of Hinton.

The Opinion of the Court was delivered PER CURIAM.

Justice STARCHER dissents and reserves the right to file a dissenting opinion.

PER CURIAM.

This appeal was filed by Cindy L. Adkins, Cynthia S. Cooper and Billie J. Gill (hereinafter referred to collectively as the "Appellants") from an order of the Circuit Court of Kanawha County. The circuit court order reversed a decision of the Board of Review, West Virginia Bureau of Employment Programs (hereinafter referred to as the "Board"). The circuit court reversed the Board's decision to award unemployment compensation benefits to the Appellants.¹ The circuit court found that the Appellants were disqualified from receiving unemployment benefits because they left their employment without good cause involving fault on the part of their employer, the City of Hinton² and the City of Hinton Sanitary Board (hereinafter referred to collectively as the "City").³ Here, the Appellants assign error to the circuit court's treatment of the City's appeal as a writ of certiorari, allowing new evidence to be introduced, and in the circuit court's determination that good cause for resigning was not shown. After listening to the arguments of the parties and carefully reviewing the record, we affirm the circuit court's order.

I. FACTUAL AND PROCEDURAL HISTORY

On September 5, 2002, a fight broke out at City Hall between a special police officer hired by the City, Melvin Cyphers,⁴ and a City Councilman, Bobby Wheeler.⁵ Ms. Cooper and Ms. Gill witnessed the fight, but Ms. Adkins did not.⁶ Ms. Gill unsuccessfully attempted to break up the fight.⁷ Local police officers were summoned and after a brief scuffle with Mr. Cyphers, they placed him under arrest.⁸

As a result of the fight, the Appellants were told by City Council President Larry Meador to not return to work until the altercation matter was resolved. The Appellants were informed that they would be provided police protection when they returned to work. The Appellants returned to work on September 11, 2002, and police protection was provided. On October 1, 2002, the Appellants sent a jointly signed memo to the City's Mayor and Council, seeking to learn the status of Mr. Cyphers and their police protection. The memo stated, in part, the following:

The working environment at City Hall continues to be extremely uncomfortable. The City Hall staff, Billie Gill, Cindy Adkins and myself, has found ourselves [sic] in a situation where we are forced to work in a daily atmosphere of fear due to the September 5, 2002 altercation.

We have not been advised as to what is the current status of Mr. Cyphers. Is he still employed by the City of Hinton? Is he our supervisor? Will he attack again? These are just a few of the questions we have. Yet, no one, not the Mayor or members of Council has taken the time to discuss this situation with us, with the exception of Councilor Wheeler. We are just wondering what will happen next.

This situation is not only detrimental to our well-being, but it is not conducive to a work environment. Are we going to remain under police protection? We feel that the situation has gone beyond reason for any person to have to endure.

....

As employees of the City of Hinton and as tax paying citizens, we feel we have the right to work under a nonviolent work atmosphere; without fear of being harassed or attacked.

The Appellants received no direct response to their memo. Instead, on October 2, 2002, the City's Mayor sent a memo to the police chief stating:

I am asking to remove the police officers from their City Hall duty as of today.

Mr. Cyphers was injured on September 5 and will not return for at least three months. He has not been at City Hall for more than two weeks. Continuing with extra police duty at City Hall is not necessary.

Subsequent to the Mayor's memo, Ms. Gill and Ms. Cooper resigned on October 8, 2002; Ms. Adkins resigned on October 9, 2002.

Each Appellant filed for unemployment compensation after resigning. In a signed statement, given for unemployment benefits, Ms. Gill gave the following reasons for resigning:

I quit my job on 10-8-02, because of harassment. The Mayor took office in 7-2001 and since then it has been a constant battle to work, she has hired a consultant to straighten out problems in [the] Department and he attacked a person in the office after he was there one hour. We have had police security there and she has changed job duties that we have not been trained for, then she is upset and puts false information in the newspapers.

In a signed statement, given for unemployment benefits, Ms. Cooper gave the following reasons for resigning:

I quit my job on 10/08/02, due to violence at the work place and the constant harassment by the Mayor of Hinton. On 09/05/02, an altercation took place at work where a City Councilman was attacked. The attack was by an individual that the Mayor had appointed. This individual was arrested for two counts of battery against two police officers and one count of battery against the Councilman. After this incident, President of the Council, Larry Meador assigned a policeman to guard the employees 8 hours a day. On 10/02/02 the Mayor removed this policeman stating that the individual who had [the] altercation had not been in the City Hall for more than two weeks and would not return for at least 3 months. The City employees had been told by the Councilman Jordan that this individual would not return to the City Hall, however, the Mayor stated he would in 3 months. Prior to the altercation the Mayor would harass the City employees by accusing us of doing things that were not true.

In a signed statement, given for unemployment benefits, Ms. Adkins gave the following reasons for resigning:

I quit my job on October 9, 2002, because of violence and harassment in the workplace. The Mayor of Hinton hired a male individual on September 5, 2002. This person initially was called the administrator. Subsequently his title changed 3 more times. He was called a special police officer at last. On his first date of employment within 2 hours he was involved in a physical altercation with a Council member. This incident required the police to be called. This altercation occurred in the same location of my office. He was arrested for the offense and placed in handcuffs. He was later removed from the building and taken to the hospital.

He returned to work the following day, however I did not because I knew he was coming to work. The City employees were told by the Council not to return to work until the matter was resolved. I returned to work on the following Wednesday and he was there also. He stayed about 4 hours and returned the following day for the same. We were instructed by the Council to have a uniformed police office[r] at the office for the entire shift while we were working. The police was there even if the man was not. The officer escorted us in and out of the building, to other rooms etc. We feared for our safety. The officer was there approximately a month until the Mayor said we could no longer have him there with us.

There were discrepancies in what the Mayor was saying. She told Council that he would not be back but she told the police department that he would not be back for 3 months.

This person was very intimidating. There was an occasion he entered my office and told me that I had to tell him where my husband was. (My husband i[s] the chief of police). When I informed him he was on vacation and had serious family matters to take care of, he pointed his finger and said he would be back to talk to me.

The claims for unemployment compensation were initially heard by a Deputy Commissioner for the Board. In three separate orders the Deputy Commissioner found that each Appellant "was subjected to violence and harassment in the workplace and the employer failed to correct the situation." Consequently, the Deputy Commissioner held that for each Appellant "no disqualification can be imposed."

The City appealed the Deputy Commissioner's decisions. All three appeals were consolidated for hearing before an administrative law judge. At the conclusion of the hearing, the administrative law judge issued three separate orders affirming the decisions of the Deputy Commissioner. The City appealed the decisions of the administrative law judge to the Board. In three separate...