Dailey v. Board of Review

• Decision Date: 10 November 2003
• Docket Number: No. 30730.,30730.
• Citation: 214 W.Va. 419,589 S.E.2d 797
• Court: West Virginia Supreme Court
• Parties: Gary DAILEY, Petitioner, v. BOARD OF REVIEW, WEST VIRGINIA BUREAU OF EMPLOYMENT PROGRAMS; William F. Vieweg, Commissioner, Bureau of Employment Programs; and Executive Air Terminal, Inc., Respondents.

589 S.E.2d 797

214 W.Va. 419

Gary DAILEY, Petitioner, v. BOARD OF REVIEW, WEST VIRGINIA BUREAU OF EMPLOYMENT PROGRAMS; William F. Vieweg, Commissioner, Bureau of Employment Programs; and Executive Air Terminal, Inc., Respondents.

No. 30730.

Supreme Court of Appeals of West Virginia.

Submitted September 23, 2003.

Decided November 10, 2003.

Dissenting Opinion of Justice Davis November 14, 2003.

Concurring Opinion of Justice Starcher December 12, 2003.

Thomas P. Maroney, Charleston, for the Petitioner.

Fred F. Holroyd, Holroyd & Yost, Charleston, for the Respondent, Executive Air Terminal. ALBRIGHT, Justice:

This is an appeal by Gary Dailey (hereinafter "Appellant") from a November 9, 2001, final order of the Circuit Court of Kanawha County affirming an order of the Board of Review of the West Virginia Bureau of Employment Programs (hereinafter "Board") which held that the Appellant had been terminated from his employment for gross misconduct and denied the Appellant unemployment compensation benefits. On appeal, the Appellant contends that the Board and lower court erred in finding sufficient evidence of gross misconduct and in denying him unemployment compensation benefits. After thorough review of the record and arguments of counsel, we reverse the findings of the Board and the lower court and determine that the Appellant was properly discharged for misconduct, but not gross misconduct. We also remand the case for further proceedings consistent with this opinion.

I. Facts and Procedural History

The Appellant was hired by Executive Air Terminal, Inc., (hereinafter "Executive") on May 1, 2000, as a line technician.¹ The Appellant's duties included driving gasoline trucks and also required him to drive off the airport property to obtain bulk gasoline and deliver passengers on public roads. When the Appellant was initially hired by Executive, the evidence presented below indicated that he represented that he maintained a valid driver's license. Subsequent to several unsuccessful attempts to obtain a copy of that driver's license, Executive contacted the West Virginia Department of Motor Vehicles and learned that the Appellant's license had been suspended in 1996. Upon realizing that the Appellant was performing his driving duties without a valid license and subjecting Executive to potential liability, Executive discharged the Appellant on June 6, 2000, based upon his lack of a valid West Virginia driver's license.² The Board concluded that the Appellant had been terminated for gross misconduct and denied the Appellant unemployment compensation benefits. The lower court affirmed that determination. The Appellant now appeals to this Court.

II. Standard of Review

In syllabus point three of Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994), this Court explained the following standard of review:

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.

Our review of this matter is further governed by our consistent recognition that "[u]nemployment compensation statutes, being remedial in nature, should be liberally construed to achieve the benign purposes intended to the full extent thereof." Syl. Pt. 6, Davis v. Hix, 140 W.Va. 398, 84 S.E.2d 404 (1954); see also Syl. Pt. 2, Smittle v. Gatson, 195 W.Va. 416, 465 S.E.2d 873 (1995); Syl. Pt. 1, Perfin v. Cole, 174 W.Va. 417, 327 S.E.2d 396 (1985). We have also asserted that "unemployment compensation statutes should be liberally construed in favor of the claimant[.]" Davenport v. Gatson, 192 W.Va. 117, 119, 451 S.E.2d 57, 59 (1994). Syllabus point one of Peery v. Rutledge, 177 W.Va. 548, 355 S.E.2d 41 (1987), also instructs that "[d]isqualifying provisions of the Unemployment Compensation Law are to be narrowly construed."

III. Discussion

A. West Virginia Statutory Guidance

Pursuant to West Virginia Code § 21A-6-3 (1990) (Repl. Vol. 2002), individuals are disqualified from obtaining unemployment benefits for six weeks³ if the termination of their employment was due to misconduct and are disqualified indefinitely if the termination was due to gross misconduct.⁴ The obvious question is therefore whether the action which precipitated the termination constituted simple misconduct or gross misconduct. The statute provides minimal guidance on this distinction, failing to provide a definition for simple misconduct and providing the following commentary on gross misconduct:

Misconduct consisting of willful destruction of his employer's property; assault upon the person of his employer or any employee of his employer; if such assault is committed at such individual's place of employment or in the course of employment; reporting to work in an intoxicated condition, or being intoxicated while at work; reporting to work under the influence of any controlled substance, or being under the influence of any controlled substance while at work; arson, theft, larceny, fraud or embezzlement in connection with his work; or any other gross misconduct[.]... Provided, That for the purpose of this subdivision the words "any other gross misconduct" shall include, but not be limited to, any act or acts of misconduct where the individual has received prior written warning that termination of employment may result from such act or acts.

W. Va.Code § 21A-6-3(2).

B. West Virginia Decisional Precedent

In Kirk v. Cole, 169 W.Va. 520, 288 S.E.2d 547 (1982), this Court held that absence from work due to illness did not constitute misconduct and that an employee was not totally disqualified from receiving benefits subsequent to her discharge for excessive absenteeism due to illness. In discussing the statutory guidance regarding unemployment compensation, the Kirk Court adopted a definition of misconduct, explaining as follows:

This Court has not previously had occasion to consider the meaning of the term "misconduct" as it is used in the unemployment compensation statute. However, in jurisdictions that have been faced with the question a general definition of misconduct has evolved. As stated in Carter v. Michigan Employment Security Commission, 364 Mich. 538, 111 N.W.2d 817 (1961), misconduct is:

conduct evincing such willful and wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed `misconduct' within the meaning of the statute.

169 W.Va. at 524, 288 S.E.2d at 549.

This issue was later addressed in Federoff v. Rutledge, 175 W.Va. 389, 332 S.E.2d 855 (1985), where this Court found that the record was sufficient to support a finding of misconduct but was insufficient to support a conclusion that the employee had been discharged for gross misconduct. In Federoff, this Court noted that "[a]s is true in many other jurisdictions, the term `misconduct' is not defined in the unemployment compensation statutes of this State." 175 W.Va. at 392, 332 S.E.2d at 858. The Federoff Court thereafter recognized this Court's reliance upon the Michigan definition of misconduct in Kirk and again utilized such definition. The Federoff Court examined the legislative statements regarding gross misconduct and the examples thereof listed in the statute and found that "[t]he legislature, by requiring notice in writing, obviously intended to interject minimal standards of due process into the procedure where acts of ordinary misconduct can trigger full disqualification for unemployment compensation." 175 W.Va. at 395, 332 S.E.2d at 860. Because the employer in that case chose not to issue a written warning, "under the unambiguous language of the statute, the appellant's discharge did not meet the legislative definition of gross misconduct warranting permanent disqualification from the receipt of unemployment compensation." Id. at 395, 332 S.E.2d at 860. Similarly, in Courtney v. Rutledge, 177 W.Va. 232, 351 S.E.2d 419 (1986), this Court employed the Michigan definition of misconduct to conclude that because written instructions provided by an employer did not indicate that failure to follow the instructions would result in the employee's termination, an employee who failed to follow the written instructions had not engaged in conduct falling within the statutory definition of gross misconduct. The employee was deemed guilty of simple misconduct and was thus subject to only a six week disqualification from unemployment compensation benefits. Id. at 235-36, 351 S.E.2d at 422.

In Peery, this Court once again employed the Michigan definition of misconduct and held that a claimant may be disqualified from receiving unemployment benefits for misconduct evincing such willful and wanton disregard of employer's interest as is found in deliberate violations or disregard of standards of behavior which employer has right to expect of an employee. 177 W.Va. at 551, 355 S.E.2d at 44. The Peery Court concluded that the employee's refusal to drive a truck over mountainous roads after working a full shift did not constitute misconduct where the employee had expressed his belief to employer that driving the route in an exhausted condition after five hours of strenuous labor would risk his life or the...