May v. Chair and Members, Board of Review

• Decision Date: 17 June 2008
• Docket Number: No. 33703.,33703.
• Citation: 664 S.E.2d 714
• Parties: Deborah K. MAY, Plaintiff Below, Appellant, v. CHAIR AND MEMBERS, BOARD OF REVIEW; Commissioner, West Virginia Bureau of Employment Programs; and Mate Creek Security, Incorporated, Employer, Defendants Below, Appellees.
• Court: West Virginia Supreme Court

664 S.E.2d 714

Deborah K. MAY, Plaintiff Below, Appellant, v. CHAIR AND MEMBERS, BOARD OF REVIEW; Commissioner, West Virginia Bureau of Employment Programs; and Mate Creek Security, Incorporated, Employer, Defendants Below, Appellees.

No. 33703.

Supreme Court of Appeals of West Virginia.

Submitted April 1, 2008.

Decided June 17, 2008.

Syllabus by the Court

1. "The findings of fact of the Board of Review of the West Virginia Department of Employment Security are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong. If the question on review is purely one 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. "Substantial unilateral changes in the terms of employment furnish `good cause involving fault on the part of the employer' which justify employee termination of employment and preclude disqualification from the receipt of unemployment compensation benefits." Syllabus Point 2, in part, Murray v. Rutledge, 174 W.Va. 423, 327 S.E.2d 403 (1985).

3. "Unemployment compensation statutes, being remedial in nature, should be liberally construed to achieve the benign purposes intended to the full extent thereof." Syllabus Point 6, Davis v. Hix, 140 W.Va. 398, 84 S.E.2d 404 (1954).

Kathryn Reed Bayless, Esq., Bayless Law Firm, PLLC, Princeton, WV, for Appellant.

Charles L. Woody, Esq., Eric E. Kinder, Esq., Jeffrey A. Foster, Esq., Spilman Thomas & Battle, PLLC, Charleston, WV, for Appellees.

PER CURIAM.

The instant action is before this Court upon the appeal of Deborah May [hereinafter "Appellant"] from a January 19, 2007, order entered by the Circuit Court of Kanawha County affirming the Board of Review's final order denying the Appellant's unemployment claim. Herein, the Appellant alleges that because substantial unilateral changes in the terms of her employment instigated by her employer necessitated her resignation, the lower tribunals erred in denying her unemployment claim finding that she had left employment voluntarily without good cause involving fault on the part of the employer. The Appellee alleges that the Appellant was correctly disqualified from receiving unemployment compensation benefits because the facts presented below demonstrate that the Appellant left her job voluntarily without good cause involving fault on the part of the employer after her demands for a raise were refused. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons expressed below, the January 19, 2007, order of the Circuit Court of Kanawha County is reversed and remanded with directions to award the Appellant unemployment compensation benefits.

I. FACTUAL AND PROCEDURAL HISTORY

On May 4, 2001, the Appellant commenced employment with Mate Creek Security [hereinafter "Mate Creek"] working as a personal maid at a three story home owned by Rawl Sales in Sprigg, West Virginia. At the time of hire, the Appellant was assigned the duties of cleaning and maintaining the upkeep of the home, as well as performing personal household tasks for Don Blankenship, who occupied the home. Appellant alleges that at the time of hire, the duties assigned to the Appellant were capable of being performed within a normal eight hour work day, and there was no indication at the time of hire that she would be expected to routinely work overtime hours. In fact, for the first several months that the Appellant worked with Mate Creek, the Appellant worked normal eight hour days.¹

After performing those duties for approximately 20 months, her employer made changes to her assigned duties. In December 2002, the Appellant was asked to take on the task of cleaning a two-cabin business complex located in Kentucky in addition to maintaining the Sprigg home.² There, she took on the additional duties of cleaning and doing laundry for guests, including Mr. Blankenship, who stayed in the cabins. The following June, Mr. Blankenship, with the Appellant's assistance, moved back to the Sprigg home. However, after the move, the Appellant was still required to continue cleaning and maintaining the Kentucky cabin complex. In light of the additional duties she was assigned and the driving that was required to the cabin complex, the Appellant requested a wage increase in July 2003. Appellant's request for a pay raise was denied.

Subsequently, in 2004, Mr. Blankenship asked the Appellant to take on the additional task of cleaning a recently purchased coach bus on a weekly basis. Appellant was also required to stock the bus with various snacks and beverages according to Mr. Blankenship's specifications. Then in January, 2005, the Appellant was assigned to yet another home that she was required to clean and maintain, in addition to her other responsibilities. Despite the significant changes in her duties and the additional tasks she took on, she received no help. She still received no wage increase.

As the Appellant's duties continued to expand, her work hours became longer and she was routinely required to work overtime hours to get all of her tasks completed. Appellant was required to work as many as thirty-three hours of overtime in one given week. Additionally, as her workload increased, it became such that she could not keep everything accomplished to Mr. Blankenship's satisfaction. Appellant eventually became so stressed out that she became sick, and she went to the hospital in October 2005, because she thought she was having a heart attack. The Appellant submitted her resignation to Mate Creek on November 18, 2005, after a final incident occurred wherein Mr. Blankenship advised the Appellant that she would be required to care for a German police dog that was going to be brought into the house.

Upon termination of her employment, the Appellant filed a written claim for unemployment benefits with the West Virginia Bureau of Unemployment Programs, stating:

"I quit my job on 11/18/05 after giving a 2 week notice. I quit because I was not given a pay raise and over the years my job duties kept increasing. The last pay raise I received was in 2002. During my employment at least 5 times I asked for pay increases that were denied. The last time I requested a pay raise was approximately 09/05. This was creating stress for me as the cost of living keeps going up. A couple of weeks ago due to stress I went to the doctor. I kept working. My goal was to get a pay raise and to get medical insurance for my daughter. I went to the welfare office to try to get medical coverage for my daughter. I was denied as I made $144.00 to (sic) much per month. Prior to quitting I told Harold Osborne, he is the person employees are to talk to and then he talks to the employer. I told him that I was tired of my job duties increasing and not getting a pay increase. This was on the day I submitted my resignation. He asked me what would they have to do to keep me working. I told him that I required a wage of $12.00 per hour, a company vehicle, and medical insurance for my children. He never responded to my issues. The circumstances causing the quit do not still exist. I am able, available and seeking full-time work. The final incident was my employer was bringing a German police attack dog into the house which I took care of. This would mean more job duties for me without a pay raise."

After reviewing the Appellant's request, on December 5, 2005, the Deputy held the following: "Claimant disqualified from November 13, 2005, to indefinite; left work voluntarily without good cause involving fault on the part of the Employer. Disqualified until Claimant returns to covered employment and has been employed in covered employment at last thirty working days."

Appellant appealed the Deputy's decision to the Board of Review. An evidentiary hearing was held on January 6, 2006, wherein the Appellant testified regarding the various changes in her work duties and presented several exhibits for consideration. On March 1, 2006, the Board of Review affirmed the ruling of the Deputy. The Chief Administrative Law Judge found no fault on the part of the employer, and that the Appellant quit her job "primarily due to the fact that she was asked to take on additional work responsibilities yet did not receive any increase in her salary. She also felt it was difficult to please Mr. Blankenship." However, the Administrative Law Judge made no specific finding of fact as to whether the admitted unilateral changes in the terms and conditions of Appellant's employment were substantial or whether such changes were insubstantial.

The Appellant again appealed the Administrative Law Judge's decision to the Board of Review, which, after reviewing the documents, affirmed and adopted the ruling of the Administrative Law Judge. After a subsequent appeal by the Appellant to the Circuit Court of Kanawha County, the circuit court affirmed the Board of Review's denial of unemployment benefits on January 19, 2007. It is from the circuit court's order that Appellant now appeals.

II. STANDARD OF REVIEW

This Court has previously held that "[t]he findings of fact of the Board of Review of the West Virginia Department of Employment Security are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong. If the question on review is purely one of law, no deference is given and the standard of judicial review by the court is de novo" Syl. Pt. 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994). In this case, we apply a de novo review to the Board of Review's legal conclusion that the Appellant quit her job "voluntarily without good cause involving fault on the part of the employer" within the meaning of West Virginia Code § 21A-6-3(1) [2005].

III. DISCUSSION

The issue before this Court is whether the Appellant is disqualified from receiving unemployment...