Perfin v. Cole

• Decision Date: 01 March 1985
• Docket Number: No. 16486,16486
• Citation: 327 S.E.2d 396,174 W.Va. 417
• Parties: Patricia C. PERFIN v. Phyllis J. COLE, Clerk of the Circuit Court of Kanawha County; Board of Review of the West Virginia Department of Employment Security: J.F. McClanahan, as Chairman and C.C. Elmore, Jr., and Gregory E. Elliott as members thereof; John A. Canfield, as Commissioner, West Virginia Department of Employment Security; and the McDowell County Board of Education.
• Court: West Virginia Supreme Court

Page 396

327 S.E.2d 396

174 W.Va. 417

Patricia C. PERFIN v. Phyllis J. COLE, Clerk of the Circuit Court of Kanawha County; Board of Review of the West Virginia Department of Employment Security: J.F. McClanahan, as Chairman and C.C Elmore, Jr., and Gregory E. Elliott as members thereof John A. Canfield, as Commissioner, West Virginia Department of Employment Security; and the McDowell County Board of Education.

No. 16486.

Supreme Court of Appeals of West Virginia.

March 1, 1985.

Syllabus by the Court

1. "Unemployment 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).

2. "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, 276 S.E.2d 821 (W.Va.1981).

3. Under West Virginia Code § 21A-6-5 (1981 Replacement Vol.), the factors which must be considered in determining whether particular employment is suitable for a particular unemployment compensation claimant are (1) the degree of risk to health, safety, and morals; (2) fitness and prior training; (3) experience and prior earnings; (4) length of unemployment; (5) prospect of securing local work in the claimant's customary occupation; and, (6) distance from the claimant's residence.

4. The issue of whether particular employment is suitable for a particular unemployment compensation claimant must be determined by careful examination of the totality of the circumstances presented in light of the six statutory factors under West Virginia Code § 21A-6-5 (1981 Replacement Vol.).

5. Although all applicable statutory factors must be considered in determining whether particular employment is suitable for a particular unemployment compensation claimant under West Virginia Code § 21A-6-5 (1981 Replacement Vol.), no single factor is determinative.

Bruce M. Green, William B. McGinley, W.V.E.A., Charleston, for petitioner.

No appearance for respondents.

McGRAW, Justice:

The appellant, Patricia C. Perfin, appeals from a final order of the Circuit Court of Kanawha County which affirmed a decision of the West Virginia Department of Employment Security Board of Review disqualifying her from receiving unemployment compensation benefits based upon a finding that she had failed to accept available suitable employment. The appellant maintains that the circuit court failed to apply the appropriate statutory factors for determining the suitability of the employment offered, and that, under those factors, the available employment was not suitable. We agree and reverse the order of the circuit court.

The appellant was employed as a teacher's aide by the McDowell County Board of Education from January 9, 1980 to June 15, 1981. Prior to this employment, the appellant had worked as a teacher's aide in Virginia for four years, as a part-time credit reporter in McDowell County, and in various other clerical positions. On November 30, 1981, the appellant was offered employment with the McDowell County Board of Education as a school custodian at Squire Elementary. The appellant rejected this offer of employment.

On December 15, 1981, a deputy with the Department of Employment Security issued a decision disqualifying the appellant from receiving benefits for the period of November 29, 1981 to January 2, 1982, because the "[c]laimant failed without good cause to accept available suitable work." ¹ At a hearing before a Department of Employment Security administrative law judge on February 1, 1982, the appellant testified that she rejected the offer of employment as a school custodian because (1) she had no prior training or experience as a school custodian; (2) she felt physically incapable of performing certain duties required of a school custodian, particularly those related to the operation of a coal-fired furnace; (3) she was afraid of working alone in the school building involved, particularly because the school had been the subject of vandalism; (4) she considered undesirable a requirement that the school custodian work one hour each Saturday and Sunday, firing the furnace and performing a "vandalism check"; and, (5) she felt better qualified to perform the types of clerical duties she had performed in connection with her previous employment.

The administrative law judge, in a decision issued on February 9, 1982, concluded, following a cursory review of the facts presented, that "these reasons did not constitute good cause and the claimant should be disqualified." The Department of Employment Security Board of Review affirmed the administrative law judge's decision on June 24, 1982, adopting his findings by reference in their entirety. On February 24, 1984, the circuit court, concluding that the issue of suitability was essentially a question of fact, determined that the final decision of the Board of Review was not plainly wrong, and affirmed the appellant's disqualification.

We begin our analysis of the issue of the suitability of available employment by noting that, "Unemployment 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 Lough v. Cole, 310 S.E.2d 491, 494 n. 5 (W.Va.1983); Belt v. Cole, 305 S.E.2d 340, 342 (1983); Syl. pt. 1, Gibson v. Rutledge, 298 S.E.2d 137 (1982); Syl. pt. 1, Lee-Norse Co. v. Rutledge, 291 S.E.2d 477 (1982); Kirk v. Cole, 288 S.E.2d 547, 549 (1982); Hill v. Board of Review, 276 S.E.2d 805, 812 (1981); London v. Board of Review, 161 W.Va. 575, 576-77, 244 S.E.2d 331, 333 (1978); Bennett v. Hix, 139 W.Va. 75, 83, 79 S.E.2d 114, 118 (1953). As to the appropriate standard of review in unemployment compensation cases, this Court held in Syllabus Point 1 of Kisamore v. Rutledge, 276 S.E.2d 821 (W.Va.1981), that, "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, Lough v. Cole, supra; Syl., Smith v. Cole, 309 S.E.2d 54 (W.Va.1983); Farmer v. Cole, 300 S.E.2d 637, 639 (W.Va.1983); Syl., Oyler v. Cole, 299 S.E.2d 13 (W.Va.1982).

We disagree with the circuit court's conclusion that the issue of suitability of available employment is a question of fact and that the plainly wrong doctrine applies. Under West Virginia Code § 21A-6-5 (1981 Replacement Vol.), ² the factors which must be considered in determining whether particular employment is suitable for a particular unemployment compensation claimant are (1) the degree of risk to health, safety, and morals; (2) fitness and prior training; (3) experience and prior earnings; (4) length of unemployment; (5) prospect of securing local work in the claimant's customary occupation; and, (6) distance from the claimant's residence. The suitability of available employment in an unemployment compensation proceeding must be determined with reference to these statutory factors. See Richardson v. Review Board of the Indiana Employment Security Division, 467 N.E.2d 770, 773 (Ind.App.1984); Tobin v. Maine Employment Security Commission, 420 A.2d 222, 225 (Me.1980); Gillig v. Director of the Division of Employment Security, 389 Mass. 483, ----, 450 N.E.2d 622, 624 (1983). Therefore, the issue of the suitability of available employment presents a question of law. See Loew's Inc. v. California Employment Stabilization Commission, 76 Cal.App.2d 231, 243, 172 P.2d 938, 945 (1946); Vail v. Employment Division of the Department of Human Resources, 30 Or.App. 365, ----, 567 P.2d 129, 131 (1977); Gettig Engineering v. Unemployment Compensation Board of Review, 81 Pa.Cmwlth. 416, 473 A.2d 749, 752 (1984); Aladdin Industries, Inc. v. Scott, 219 Tenn. 71, 77, 407 S.W.2d 161, 164 (1966). Unfortunately, despite a legislative mandate that "the commissioner shall consider" the six statutory factors "[i]n determining whether work is suitable for an individual," West Virginia Code § 21A-6-5 (1981 Replacement Vol.) (Emphasis added), the record in this proceeding is barren of any reference to these factors. Therefore, we must examine the circumstances presented in light of these factors in determining whether the available employment met the statutory definition of suitability. ³

As to the degree of risk associated with the school custodian position, the appellant would have been required to frequently work alone in the school building, particularly on weekends and holidays; she would have been responsible for policing the school grounds, for conducting weekend "vandalism checks," for opening the building each morning, and for closing the building each night; and she was aware of the fact that the school had been the subject of vandalism, including an incident which occurred during her interview involving the destruction of the school's flag pole. In the appellant's words, "[I]t really would frighten me to have to work in a building alone." As to the appellant's fitness and prior training, school custodial duties such as maintenance of the entire school building and playground areas, removing trash from the playground and lunchroom, clearing the steps, walkways, and playground areas of ice and snow, and stoking a coal-fired furnace require a level of physical strength and stamina not ordinarily associated with the types of clerical positions in which the appellant had received her prior training. The appellant testified that she was particularly concerned with her...