Federoff v. Rutledge

• Decision Date: 10 July 1985
• Docket Number: No. 16332,16332
• Citation: 332 S.E.2d 855,175 W.Va. 389
• Court: West Virginia Supreme Court
• Parties: Sidney D. FEDEROFF v. Phyllis J. RUTLEDGE, Clerk of the Circuit Court of Kanawha County; Board of Review of the West Virginia Department of Employment Security; J.F. McClanahan, as Chairman, C.C. Elmore, Jr., and Gregory E. Elliott, as Commissioners; West Virginia Department of Employment Security; and Consolidation Coal Company, Employer.

Page 855

332 S.E.2d 855

175 W.Va. 389

Sidney D. FEDEROFF v. Phyllis J. RUTLEDGE, Clerk of the Circuit Court of Kanawha County; Board of Review of the West Virginia Department of Employment Security; J.F. McClanahan, as Chairman, C.C Elmore, Jr., and Gregory E. Elliott, as Commissioners; West Virginia Department of Employment Security; and Consolidation Coal Company, Employer.

No. 16332.

Supreme Court of Appeals of West Virginia.

July 10, 1985.

Dissenting Opinion July 15, 1985.

Syllabus by the Court

1. "Findings of fact by the Board of Review of the West Virginia Department of Employment Security, in an unemployment compensation case, should not be set aside unless such findings are plainly wrong; however, the plainly wrong doctrine does not apply to conclusions of law by the Board of Review." Syl. pt. 1, Kisamore v. Rutledge, 166 W.Va. 675, 276 S.E.2d 821 (1981).

2. Under West Virginia Code § 21A-6-3(2) (Supp.1984), reporting to work smelling of alcoholic beverages, after previously being admonished not to do so, supports a determination that an unemployment compensation claimant was discharged for ordinary misconduct and thereby subject to a six-week disqualification from the receipt of benefits.

William S. Winfrey, II, Princeton, for appellant.

Jackson, Kelly, Holt & O'Farrell, Charleston, Attn: Charles M. Surber, Jack O. Friedman, Charleston, for appellee.

McGRAW, Justice:

This is an appeal from a final order of the Circuit Court of Kanawha County which affirmed the decision of the Board of Review of the West Virginia Department of Employment Security disqualifying the appellant, Sidney Federoff, from receiving unemployment compensation. The appellant was permanently disqualified based upon a determination that he was discharged from his employment for gross misconduct.

I

The relevant facts derived from the record, including the transcript of the testimony taken before an Administrative Law Judge for the Board of Review of the West Virginia Department of Employment Security, indicate the following chain of events. The appellant was employed by the appellee, Consolidation Coal Company, from August 11, 1971 until his dismissal on February 8, 1982. In June of 1981, the appellant, then working at the appellee's Maitland mine, was interviewed for a maintenance foreman vacancy at the company's Rowland mine. The appellant was given the vacant position. Beforehand, however, the Rowland mine superintendent, who had been previously informed that the appellant had drinking and absenteeism problems, warned the appellant that absenteeism or coming to work drunk or smelling of alcohol would not be tolerated and would subject him to discharge.

An incident involving the appellant occurred approximately one week after he began his brief tenure at the Rowland mine. Upon reporting to work one morning, his immediate supervisor detected the smell of alcohol on his breath. During the evidentiary hearing before the Board of Review, this supervisor testified that upon this discovery he took the appellant to his office and told him "that it was the policy of our company--that no one would be allowed to work under the influence or with alcohol on their breath." The appellant apparently denied drinking anything prior to work that morning but, according to his own testimony, acknowledged that he had a problem with alcohol and had done some drinking the previous night. After the colloquy in the supervisor's office, the appellant was sent back to finish his work shift.

The final incident leading to the appellant's discharge occurred during a period he was assigned to work the midnight shift. On February 8, 1982, rather than reporting for work at the scheduled time of 12:01 a.m., the appellant showed up between 4:30 and 5:30 that morning. Upon learning of his substantial tardiness, the appellant was confronted by his supervisor, and later, by the mine superintendent. The mine superintendent later testified at the Board of Review hearing that he could smell alcohol on the appellant from a distance of five or six feet. The appellant's immediate supervisor also testified that he could smell alcohol on the appellant's breath, and that his eyes appeared extremely red. The appellant was discharged that morning.

In his own explanation of this incident, the appellant testified that on the evening before this shift he had a couple of drinks at home around 7:00 p.m. and then overslept after lying down to take a nap before getting ready to go to work. He further added that,

I never went to work intoxicated--I know that you could smell it. I am an alcoholic and I was drinking of a night. When I was working the hoot owl I suppose my eyes were red. I wasn't use to that shift. Probably did look bad. The night I was terminated--it is just exactly like I told it.

Subsequent to his discharge, the appellant applied for unemployment compensation with the West Virginia Department of Employment Security. The appellee-employer filed a statement with the Department to the effect that, "Mr. Sidney Federoff was discharged for reporting to work in such a condition that the smell of alcohol was evident. Mr. Federoff was warned on several occasions against reporting to work in such a condition." The Deputy Commissioner for the Department who rendered the decision on this claim found that the appellant was discharged "for reporting to work in an intoxicated condition," thereby permanently disqualifying him from receiving any unemployment compensation due to gross misconduct.

The appellant appealed the Deputy's decision and an evidentiary hearing was held. The presiding Administrative Law Judge concluded that the discharge was for gross misconduct. The Board of Review subsequently adopted the ALJ's findings and affirmed. The appellant then appealed to the Circuit Court of Kanawha County, and by order dated April 27, 1984, the court affirmed the decision of the Board of Review.

II

West Virginia Code § 21A-6-3 (Supp.1984), specifies the various reasons whereby an individual, otherwise eligible, may be wholly or partially denied unemployment compensation. In this case, the relevant portion of the statute is subsection (2), which pertains to discharges predicated upon employee misconduct. This provision mandates a six-week disqualification for unemployment compensation benefits if it is determined that the claimant was discharged for ordinary misconduct, and permanent disqualification if it is determined that the reason for discharge falls within the statutorily designated sphere of "gross" misconduct.

As stated in Syllabus point 1 of Kisamore v. Rutledge, 166 W.Va. 675, 276 S.E.2d 821 (1981), "Findings of fact by the Board of Review of the West Virginia Department of Employment Security, in an unemployment compensation case, should not be set aside unless such findings are plainly wrong; however, the plainly wrong doctrine does not apply to conclusions of law by the Board of Review." See also Syl. pt. 1, Butler v. Rutledge, 174 W.Va. 752, 329 S.E.2d 118 (1985); Syl. pt. 1, Mizell v. Rutledge, 174 W.Va. 514, 328 S.E.2d 514 (1985); Syl. pt. 2, Perfin v. Cole, 327 S.E.2d 396 (1985); Syl. pt. 1, Lough v. Cole, 172 W.Va. 730, 310 S.E.2d 491 (W.Va.1983); Farmer v. Cole, 171 W.Va. 524, 300 S.E.2d 637, 639 (1983).

We first address whether the appellant's actions which caused his discharge support a determination that he is subject to a six-week disqualification for unemployment compensation due to being "discharged from his most recent work for [ordinary] misconduct." As is true in many other jurisdictions, the term "misconduct" is not defined in the unemployment compensation statutes of this State. This Court, therefore, when previously presented with the issue of the meaning of the term, adopted the following judicially evolved definition:

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. Kirk v. Cole, 169 W.Va. 520, 288 S.E.2d 547, 549 (1982); see also Cooper v. Rutledge, 169 W.Va. 288, 286 S.E.2d 920, 922-23 (1982).

Without question, the drinking of alcohol and the mining of coal "don't mix." It follows then, that an employer may choose to discharge an employee upon less than substantial evidence of actual intoxication. The testimony of the employer's witnesses, as well as the appellant's own admissions, clearly support the Board's finding that the appellant reported to work with the smell of alcohol on his breath. The Board's findings of fact in this case indicate that previous oral warnings were given to the appellant concerning the problem. Particularly in light of the fact that the appellant was employed as a foreman, this continued behavior supports a conclusion that he acted in substantial disregard of his employer's interests. The smell of intoxicants on the appellant, for example, could lead miners working under him to believe that drinking on the job was tolerated.

The appellant's defense that he did not report to work intoxicated or drink on the job is no defense to the charge that he ignored previous oral warnings not to report to work in such an odoriferous condition. Being employed in a position with supervisory duties, such as the appellant in the instant case, or being in a position where one is in...