Verizon Servs. Corp. v. Epling

• Decision Date: 27 February 2013
• Docket Number: No. 11–1425.,11–1425.
• Citation: 230 W.Va. 439,739 S.E.2d 290
• Court: West Virginia Supreme Court
• Parties: VERIZON SERVICES CORPORATION, Petitioner v. Loretta K. EPLING, Respondent.

230 W.Va. 439

739 S.E.2d 290

VERIZON SERVICES CORPORATION, Petitioner

v.Loretta K. EPLING, Respondent.

No. 11–1425.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 23, 2013.

Decided Feb. 27, 2013.

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 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).

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, 166 W.Va. 675, 276 S.E.2d 821 (1981).

3. “The word voluntarily as used in W.Va.Code, 21A–6–3(1) means the free exercise of the will.” Syl. Pt. 3, Childress v. Muzzle, 222 W.Va. 129, 663 S.E.2d 583 (2008).

4. “The term ‘good cause’ as used in W.Va.Code, 21A–6–3(1) means cause involving fault on the part of the employer sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.” Syl. Pt. 4, Childress v. Muzzle, 222 W.Va. 129, 663 S.E.2d 583 (2008).

5. “ ‘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).” Syl. Pt. 2, Childress v. Muzzle, 222 W.Va. 129, 663 S.E.2d 583 (2008).

6. “Misrepresentations concerning the terms of employment or 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.” Syl. Pt. 2, Murray v. Rutledge, 174 W.Va. 423, 327 S.E.2d 403 (1985).

Mark H. Dellinger, Bowles Rice McDavid Graff & Love, LLP, Charleston, WV, for Petitioner.

Sarah K. Brown, Mountain State Justice, Inc., Charleston, WV, for the Respondent.

PER CURIAM:

This is an appeal by Verizon Services Corporation (hereinafter “ Verizon”) from a September 19, 2011, order of the Circuit Court of Kanawha County reversing the Board of Review of Workforce West Virginia (hereinafter “ Board of Review”) and finding that the respondent, former Verizon employee Mrs. Loretta K. Epling (hereinafter “Mrs. Epling”), is entitled to unemployment compensation benefits. Verizon appeals the decision of the circuit court, contending that the circumstances of Mrs. Epling's departure from employment with Verizon do not satisfy the statutory standard for an award of unemployment compensation benefits. Upon thorough review of the briefs, arguments, record, and applicable precedent, this Court reverses the decision of the circuit court and remands this matter with directions to reinstate the decision of the Board of Review finding Mrs. Epling ineligible for unemployment compensation benefits.

I. Factual and Procedural History

Mrs. Epling was hired by Verizon on June 2, 2008, as a business consultant. At the time of her initial employment, Mrs. Epling chose to work within the business office because that position permitted her to work a day shift and pick up her children from daycare by 6:00 p.m. each evening. Prior to beginning her employment with Verizon, Mrs. Epling was provided with two documents. A document entitled “Job Offer Confirmation” informed her that her “work schedule” would be determined by her “supervisor based on the needs of the business.” The document further provided that “[t]his may include evenings, nights, weekends, overtime, and overnight stays when required.” A second document, entitled “Statement of Understanding,” informed Mrs. Epling that she “may be scheduled to work any days/hours from Monday through Friday, and may be required to work occasional weekend and Holidays as needed.” This document also explained that “[t]ours of duty are currently scheduled between the hours of 8:00 a.m. and 6:00 p.m.” and informedMrs. Epling as follows: “You also understand that tours of duty are subject to change at any time based on the needs of the business, and that they are scheduled based on seniority.” Furthermore, Verizon and the Communication Workers of America (hereinafter “Union”), of which Mrs. Epling was a member, had also negotiated a collective bargaining agreement providing that employment hours and schedules could be altered by Verizon to meet business requirements.

In March 2010, Verizon determined that re-assignment of employees to different shifts was necessitated by the fact that Verizon was being purchased by another company. Consequently, Mrs. Epling was notified that her hours of employment would be changed to 12:00–8:00 p.m. three days per week and 1:00–9:00 p.m. two days per week, beginning March 15, 2010. She would also be entitled to receive a pay increase. In response, Mrs. Epling expressed concerns regarding her childcare issues ¹ and offered to work part-time during the day shift or take another position on day shift. Verizon alleges that it was unable to grant Mrs. Epling's requests because it could not displace more senior employees to accommodate Mrs. Epling's needs.

On March 15, 2010, Mrs. Epling resigned from her employment with Verizon. She thereafter filed for unemployment compensation benefits on March 21, 2010. A Workforce West Virginia deputy, by order dated April 1, 2010, found Mrs. Epling eligible for unemployment compensation benefits. On May 13, 2010, an administrative hearing ² was held on Mrs. Epling's request for unemployment compensation benefits. By order dated June 1, 2010, the administrative law judge upheld the eligibility finding, holding that Mrs. Epling had left work voluntarily and had sustained her burden of proving that she had left employment for good cause involving fault on the part of the employer. Specifically, the order of the administrative law judge held as follows:

The claimant left work voluntarily. March 15, 2010, the employer was changing the claimant's shift assignment from dayshift to evening shift. The change in shift assignment was significant to the claimant, considering the claimant's daycare responsibilities and concerns. The daycare for the claimant's children closed at 6 pm. The claimant was unable to accept the evening shift assignment, considering the claimant's daycare responsibilities and situation with her children. Consequently, the change in shift assignments is a material unilateral change in the terms or conditions of employment, which constitute good cause for the claimant to leave work. Therefore, it is held that the claimant left work voluntarily with good cause involving fault on the part of the employer. The claimant is not disqualified.

By order dated July 23, 2010, the Board of Review reversed the administrative law judge's decision without additional hearing. The Board found that Mrs. Epling was ineligible for unemployment compensation benefits, reasoning that although Mrs. Epling left work voluntarily due to a change in her working hours, the departure was not for good cause involving fault on the part of the employer. Specifically, the Board found that the element of fault on the part of the employer did not exist. The Board emphasized that Mrs. Epling's Union had negotiated a collective bargaining agreement authorizing Verizon to alter employees' shifts and hours based upon business needs. The Board noted that a shift differential, providing additional compensation, would be paid to evening shift employees, and that Verizon was acting within the terms of the collective bargaining agreement. Moreover, the Board held that the change in Mrs. Epling's working hours “was not a unilateral change as the contract was negotiated by both the union and the employer.” The Board therefore concluded that Mrs. Epling had “failed to show good cause involving fault on the part of the employer....”

Upon appeal by Mrs. Epling, the Circuit Court of Kanawha County reversed the Board and found, by order dated September 19, 2011, that Mrs. Epling was eligible for benefits. The circuit court concluded that Mrs. Epling had terminated her employment for good cause involving fault on the part of Verizon. The circuit court reasoned that although the collective bargaining agreement permitted Verizon to alter Mrs. Epling's hours, the relevant issue was “whether the change in her hours constituted fault on the part of the employer causing Ms. Epling to leave her job with good cause.” Finding that the children's needs constituted good cause, the circuit court concluded that Verizon had initiated a substantial and unilateral alteration in work hours and that the “fault” of Verizon consisted of its “insistence on changing Ms. Epling's work hours and refusal to work within Ms. Epling's request for a work schedule that she could complete without jeopardizing the care of her children.” Based upon the circuit court's analysis, it ruled that Mrs. Epling should not be disqualified from receiving unemployment compensation benefits.

On October 13, 2011, Verizon appealed to this Court. Verizon contends that the circuit court erred by making the following findings: (1) Mrs. Epling left her employment for good cause involving the “fault” of Verizon; (2) Verizon made a substantial unilateral change to the terms of employment; and (3) particular prior opinions of this Court are determinative of the issue of Mrs. Epling's eligibility for unemployment compensation benefits.

II. Standard of Review

This Court has previously held that “[t]he findings of fact of the Board of Review of the West...