Dailey v. Board of Review, West Virginia Bureau of Employment Programs

589 S.E.2d 797, 214 W. Va. 419
CourtWest Virginia Supreme Court
DecidedDecember 12, 2003
Docket30730
StatusPublished
Cited by27 cases

This text of 589 S.E.2d 797 (Dailey v. Board of Review, West Virginia Bureau of Employment Programs) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dailey v. Board of Review, West Virginia Bureau of Employment Programs, 589 S.E.2d 797, 214 W. Va. 419 (W. Va. 2003).

Opinions

ALBRIGHT, Justice:

This is an appeal by Gary Dailey (hereinafter “Appellant”) from a November 9, 2001, final order of the Circuit Court of Kanawha County affirming an order of the Board of Review of the West Virginia Bureau of Employment Programs (hereinafter “Board”) which held that the Appellant had been terminated from his employment for gross misconduct and denied the Appellant unemployment compensation benefits. On appeal, the Appellant contends that the Board and lower court erred in finding sufficient evidence of gross misconduct and in denying him unemployment compensation benefits. After thorough review of the record and arguments of [422]*422counsel, we reverse the findings of the Board and the lower court and determine that the Appellant was properly discharged for misconduct, but not gross misconduct. We also remand the case for further proceedings consistent with this opinion.

I.Facts and Procedural History

The Appellant was hired by Executive Air Terminal, Inc., (hereinafter “Executive”) on May 1, 2000, as a line technician.1 The Appellant’s duties included driving gasoline trucks and also required him to drive off the airport property to obtain bulk gasoline and deliver passengers on public roads. When the Appellant was initially hired by Executive, the evidence presented below indicated that he represented that he maintained a valid driver’s license. Subsequent to several unsuccessful attempts to obtain a copy of that driver’s license, Executive contacted the West Virginia Department of Motor Vehicles and learned that the Appellant’s license had been suspended in 1996. Upon realizing that the Appellant was performing his driving duties without a valid license and subjecting Executive to potential liability, Executive discharged the Appellant on June 6, 2000, based upon his lack of a valid West Virginia driver’s license.2 The Board concluded that the Appellant had been terminated for gross misconduct and denied the Appellant unemployment compensation benefits. The lower comí; affirmed that determination. The Appellant now appeals to this Court.

II.Standard of Review

In syllabus point three of Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994), this Court explained the following standard of review:

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.

Our review of this matter is further governed by our consistent recognition that “[u]nem-ployment 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 Syl. Pt. 2, Smittle v. Gatson, 195 W.Va. 416, 465 S.E.2d 873 (1995); Syl. Pt. 1, Perfin v. Cole, 174 W.Va. 417, 327 S.E.2d 396 (1985). We have also asserted that “unemployment compensation statutes should be liberally construed in favor of the claimantf.]” Davenport v. Gatson, 192 W.Va. 117, 119, 451 S.E.2d 57, 59 (1994). Syllabus point one of Peery v. Rutledge, 177 W.Va. 548, 355 S.E.2d 41 (1987), also instructs that “[disqualifying provisions of the Unemployment Compensation Law are to be narrowly construed.”

III.Discussion

A. West Virginia Statutory Guidance

Pursuant to West Virginia Code § 21A-6-3 (1990) (Repl. Vol. 2002), individuals are disqualified from obtaining unemployment benefits for six weeks3 if the termination of them employment was due to misconduct and are disqualified indefinitely if the termination was due to gross misconduct.4 The obvious question is therefore [423]*423whether the action which precipitated the termination constituted simple misconduct or gross misconduct. The statute provides minimal guidance on this distinction, fading to provide a definition for simple misconduct and providing the following commentary on gross misconduct:

Misconduct consisting of willful destruction of his employer’s property; assault upon the person of his employer or any employee of his employer; if such assault is committed at such individual’s place of employment or in the course of employment; reporting to work in an intoxicated condition, or being intoxicated whde at work; reporting to work under the influence of any controlled substance, or being under the influence of any controlled substance whde at work; arson, theft, larceny, fraud or embezzlement in connection with his work; or any other gross misconduct[.] ... Provided, That for the purpose of this subdivision the words “any other gross misconduct” shall include, but not be limited to, any act or acts of misconduct where the individual has received prior written warning that termination of employment may result from such act or acts.

W. Va.Code § 21A-6-3(2).

B. West Virginia Decisional Precedent

In Kirk v. Cole, 169 W.Va. 520, 288 S.E.2d 547 (1982), this Court held that absence from work due to dlness did not constitute misconduct and that an employee was not totally disqualified from receiving benefits subsequent to her discharge for excessive absenteeism due to dlness. In discussing the statutory guidance regarding unemployment compensation, the Kirk Court adopted a definition of misconduct, explaining as follows:

This Court has not previously had occasion to consider the meaning of the term “misconduct” as it is used in the unemployment compensation statute. However, in jurisdictions that have been faced with the question a general definition of misconduct has evolved. As stated in Carter v. Michigan Employment Security Commission, 864 Mich. 538, 111 N.W.2d 817 (1961), misconduct is:
conduct evincing such wdlful 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.

169 W.Va. at 524, 288 S.E.2d at 549.

This issue was later addressed in Federoff v. Rutledge, 175 W.Va. 389, 332 S.E.2d 855

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Bluebook (online)
589 S.E.2d 797, 214 W. Va. 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dailey-v-board-of-review-west-virginia-bureau-of-employment-programs-wva-2003.