Thomas Memorial Hosp. v. Bd. of Review

• Decision Date: 10 June 2005
• Docket Number: No. 32054.,32054.
• Citation: 620 S.E.2d 169
• Court: West Virginia Supreme Court
• Parties: HERBERT J. THOMAS MEMORIAL HOSPITAL, Appellant, v. BOARD OF REVIEW OF THE WEST VIRGINIA BUREAU OF EMPLOYMENT PROGRAMS; James G. Dillon, as Chairman Thereof; James Sago and Carole A.L. Bloom, as Members Thereof; Greg Burton, Commissioner of the Bureau of Employment Programs; and James M. Kirk, Appellees.

620 S.E.2d 169

HERBERT J. THOMAS MEMORIAL HOSPITAL, Appellant, v. BOARD OF REVIEW OF THE WEST VIRGINIA BUREAU OF EMPLOYMENT PROGRAMS; James G. Dillon, as Chairman Thereof; James Sago and Carole A.L. Bloom, as Members Thereof; Greg Burton, Commissioner of the Bureau of Employment Programs; and James M. Kirk, Appellees.

No. 32054.

Supreme Court of Appeals of West Virginia.

Submitted May 11, 2005.

Decided June 10, 2005.

COPYRIGHT MATERIAL OMITTED

Charles M. Surber, Jr., Brian J. Moore, Jackson Kelly P.L.L.C., Charleston, for the Appellant.

PER CURIAM.

Herbert J. Thomas Memorial Hospital (hereinafter "Thomas" or "the hospital"), appeals from an order entered March 18, 2004, by the Circuit Court of Kanawha County. By that order, the circuit court affirmed the decision of the Board of Review of the West Virginia Bureau of Employment Programs (hereinafter "Board"), finding that the misconduct committed by Thomas' former employee, James Kirk (hereinafter "Mr. Kirk"), did not rise to the level of gross misconduct. Accordingly, the Board found, and the circuit court affirmed, that Mr. Kirk was entitled to receive unemployment compensation benefits pursuant to the guidelines set forth in W. Va.Code § 21A-6-3(2) (1990) (Repl.Vol.2002). On appeal, Thomas argues that theft is gross misconduct;¹ therefore, Mr. Kirk should not receive unemployment benefits for his termination from Thomas for stealing food from the cafeteria. Based upon the parties' arguments,² the record designated for our consideration, and the pertinent authorities, we reverse the decision of the circuit court.

I. FACTUAL AND PROCEDURAL HISTORY

Mr. Kirk was employed by Thomas on January 5, 1995, as a maintenance person on the night shift. Mr. Kirk admitted that, during his employment, he removed food items from the hospital cafeteria without paying for them. He stated that he was allowed by the cashier to take food from the cafeteria without paying for it, an allegation that is denied by the cafeteria's cashier. Mr. Kirk further admitted that he would unlock the cafeteria during its nonbusiness hours and take food without anyone's knowledge. The hospital was alerted to the situation in April 2003.

During this time, Mr. Kirk was also having work performance-related problems. A meeting was held between Mr. Kirk and hospital personnel regarding his performance-related troubles, and, during this meeting, Mr. Kirk admitted he had been taking food from the cafeteria without paying for it. Mr. Kirk, however, claimed that he always returned to the cafeteria at a later time to pay for the food. Thomas then spoke with a witness identified by Mr. Kirk and learned that Mr. Kirk had approached this witness and asked her to lie on his behalf. The witness declined to lie for Mr. Kirk and stated that Mr. Kirk did not return at later dates to pay for food he had previously removed from the premises. When Thomas investigated and confirmed that Mr. Kirk had removed food without paying for it, the hospital terminated Mr. Kirk's employment effective April 27, 2003.³

Mr. Kirk filed for unemployment compensation benefits. On May 13, 2003, the Deputy Commissioner ruled that Mr. Kirk was not entitled to receive unemployment benefits because he had committed theft, which is a form of gross misconduct under W. Va.Code § 21A-6-3(2). Mr. Kirk appealed, and a hearing was held before an administrative law judge. All parties were present and submitted evidence, and the administrative law judge affirmed the findings and rulings of the Deputy Commissioner.

Mr. Kirk then appealed to the Board, which issued an opinion on August 11, 2003, that reversed the decision of the administrative law judge. The Board found that while Mr. Kirk committed an act of misconduct when he removed items from the cafeteria without paying for them, he committed acts of simple misconduct as opposed to gross misconduct. The Board's opinion was based on its assumption that other hospital employees also had removed food from the hospital without paying for the items. Thomas appealed to the Circuit Court of Kanawha County, claiming that the Board's decision was erroneous and arguing that theft automatically equals gross misconduct. The circuit court affirmed the Board, finding that Mr. Kirk's conduct was not willful, wanton, or deliberate in nature and, therefore, did not constitute gross misconduct. Thomas asserts on appeal to this Court that Mr. Kirk committed theft, and further, that theft is automatically gross misconduct.

II. STANDARD OF REVIEW

This case is before this Court on appeal from the circuit court's order affirming the decision of the Board. We have held:

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.

Syl. pt. 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994). Therefore, we examine the factual determination that Mr. Kirk took food without paying for it under a clearly wrong standard, and we examine the legal determination that theft is not gross misconduct under a de novo standard of review.

Further guidance is provided in our 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). Accord Mercer County Bd. of Educ. v. Gatson, 186 W.Va. 251, 412 S.E.2d 249 (1991) (per curiam); London v. Board of Review of Dep't of Employment, 161 W.Va. 575, 244 S.E.2d 331 (1978). "Disqualifying provisions of the Unemployment Compensation Law are to be narrowly construed." Syl. pt. 1, Peery v. Rutledge, 177 W.Va. 548, 355 S.E.2d 41 (1987). Moreover, "the burden of persuasion is upon the former employer to demonstrate by the preponderance of the evidence that the claimant's conduct falls within a disqualifying provision of the unemployment compensation statute." Peery, 177 W.Va. at 552, 355 S.E.2d at 45 (internal citations omitted). Mindful of these applicable standards, we now consider the parties' arguments.

III. DISCUSSION

West Virginia Code § 21A-6-3⁴ provides for an individual's disqualification from unemployment compensation benefits for misconduct. Thomas argues that Mr. Kirk committed acts of gross misconduct; whereas, the circuit court found that Mr. Kirk's actions arose only to the level of simple misconduct. The level of misconduct determines the level of unemployment compensation benefits available to a claimant. Individuals are disqualified from obtaining unemployment benefits for six weeks if the termination of their employment was due to misconduct and are disqualified indefinitely if the termination was due to gross misconduct. W. Va.Code § 21A-6-3(2).

For purposes of determining the level of disqualification for unemployment compensation benefits under West Virginia Code § 21A-6-3, simple 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.

Syl. pt. 7, Dailey v. Board of Review, W. Va. Bureau of Employment Programs, 214 W.Va. 419, 589 S.E.2d 797 (2003). Moreover,

[f]or purposes of determining the level of disqualification for unemployment compensation benefits under West Virginia Code § 21A-6-3, an act of misconduct shall be considered gross misconduct where the underlying misconduct consists of (1) willful destruction of the employer's property; (2) assault upon the employer or another employee in certain circumstances; (3) certain instances of use of alcohol or controlled substances as delineated in West Virginia Code § 21A-6-3; (4) arson, theft, larceny, fraud, or embezzlement in connection with employment; or (5) any other gross misconduct which shall include but not be limited to instances where the employee has received prior written notice that his continued acts of misconduct may result in termination of employment[.]

Syl. pt. 4, in part, Dailey, id.

We must therefore decide whether the action that prompted Thomas' termination of Mr. Kirk constituted simple misconduct or gross misconduct. It is undisputed that Mr. Kirk removed food from the cafeteria without paying for it. We have previously held that "[t]o support a conviction for larceny at common law, it must be shown that the defendant took and carried away the personal property of another against his will and with the intent to permanently deprive him of the ownership thereof." Syl. pt. 3, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), overruled on other grounds by Syl. pt. 6, State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994). In another unemployment compensation case, we applied this holding to determine that a claimant did not commit theft or larceny when he took property that had been abandoned, finding that the claimant did not take property against the will of the owner with the intent to permanently deprive the owner of ownership of the property. See Syl. pt. 4, Summers v. Gatson, 205 W.Va. 198, 517 S.E.2d 295 (1999) (per curiam). The record in the...