University of West Virginia Board of Trustees/West Virginia University v. Aglinsky

522 S.E.2d 909, 206 W. Va. 180, 1999 W. Va. LEXIS 123
CourtWest Virginia Supreme Court
DecidedOctober 13, 1999
DocketNo. 25895
StatusPublished
Cited by1 cases

This text of 522 S.E.2d 909 (University of West Virginia Board of Trustees/West Virginia University v. Aglinsky) 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
University of West Virginia Board of Trustees/West Virginia University v. Aglinsky, 522 S.E.2d 909, 206 W. Va. 180, 1999 W. Va. LEXIS 123 (W. Va. 1999).

Opinion

PER CURIAM:

This is an appeal by Thomas Aglinsky, Appellant/Respondent below (hereinafter referred to as “Aglinsky”), from an order of the Circuit Court of Kanawha County reversing a decision by the Board of Review of the West Virginia Bureau of Employment Programs (hereinafter referred to as “Board of Review”). The Board of Review determined that Aglinsky was eligible for unemployment benefits without disqualification. The circuit court found that Aglinsky’s termination by the University of West Virginia Board of Trustees — West Virginia University, Appel-lee/Petitioner below (hereinafter referred to as ‘WVU”), was for gross misconduct. Therefore, Aglinsky was disqualified from receiving unemployment compensation benefits. In this appeal, Aglinsky seeks to have this Court reverse the circuit court’s order. Having reviewed the parties’ arguments on appeal, the record designated for appellate review, and the pertinent authorities, we reverse the decision of the Circuit Court of Kanawha County.

I.

FACTUAL AND PROCEDURAL HISTORY

Aglinsky began his employment as a custodian 'with WVU in 1991. In November of 1995, Aglinsky was transferred to WVU’s Department of Public Safety in the supervisory position of Parking Attendant II. Aglin-sky was unable to satisfactorily perform the job as a Parking Attendant II. In March of 1996, he was demoted to the nonsupervisory position of Parking Attendant I.1

WVU terminated Aglinsky in July of 1996. The termination occurred as a result of Ag-linsky writing a notation on a ticket that read: “Person clapped his hands. He said I will pay the ticket. What is it $1.50?” Ag-linsky had previously been counseled by WVU not to write purported “personal messages” on tickets.2 Subsequent to his termination, Aglinsky filed for unemployment compensation benefits. It was initially determined by a deputy administrator for West Virginia Bureau of Employment Programs, that Aglinsky was disqualified from receiving benefits. The deputy administrator found that Aglinsky “failed to comply with a known policy after having received prior written warning. His action was an act of gross misconduct.”

Aglinsky protested the denial of benefits. A hearing was conducted before an Administrative Law Judge (ALJ). The ALJ re[182]*182versed the decision of the deputy administrator. The ALJ held that Aglinsky was eligible without disqualification for benefits as the reason for his termination did not involve an act of gross misconduct. WVU appealed the ALJ decision to the Board of Review. The Board of Review affirmed the decision of the ALJ. WVU appealed the decision of the Board of Review to the circuit court.

After a review of the record, the circuit court held that the Board of Review committed error in affirming the decision of the ALJ. The circuit court ruled that “[t]he act itself of simply writing a personal message on a citation is not deemed gross misconduct.” However, the circuit court found that the cumulative conduct of Aglinsky amounted to gross misconduct. The circuit court’s order stated that “it is not unreasonable to characterize multiple failures to follow reasonable work directives as substantial or willful disregard, and thus gross disqualifying misconduct ..., if the omissions occur so numerously as to negate any possibility that the misconduct was the result of a lack of being informed about specific job policies and procedures.” Aglinsky now appeals the circuit court’s order.

II.

STANDARD OF REVIEW

This Court held in syllabus point 3 of Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994) that:

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.

This Court also pointed out long ago in syllabus point 6 of Davis v. Hix, 140 W.Va. 398, 84 S.E.2d 404 (1954), that “[ujnemployment compensation statutes, being remedial in nature, should be liberally construed to achieve the benign purposes intended to the full extent thereof.” See 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 been consistent in holding that “unemployment compensation statutes should be liberally construed in favor of the claimant[.]” Davenport v. Gatson, 192 W.Va. 117, 119, 451 S.E.2d 57, 59 (1994).

III.

DISCUSSION

This Court has recognized that West Virginia’s statutory eligibility and disqualification provisions concerning the receipt of unemployment compensation benefits establish a two-step process. Hill v. Board of Review, 166 W.Va. 648, 276 S.E.2d 805 (1981). The first step requires determining whether an individual is eligible to receive such benefits. The second step is to consider whether the individual is disqualified. Lough v. Cole, 172 W.Va. 730, 310 S.E.2d 491 (1983). No issue has been raised before this Court concerning Aglinsky’s eligibility for unemployment compensation benefits. This Court, therefore, has before it the very narrow question of whether Aglinsky was properly disqualified from receiving such benefits.

Simple misconduct does not result in disqualification. On the other hand, misconduct of an extreme degree which is so recurrent as to show a substantial disregard for the employee’s duties to his or her employer can result in disqualification. Kirk v. Cole, 169 W.Va. 520, 288 S.E.2d 547 (1982). In eases of doubt, the law favors the construction which does not work a disqualification. Peery v. Rutledge, 177 W.Va. 548, 355 S.E.2d 41 (1987).

In the instant proceeding, the circuit court found that the incident involving Aglinsky’s writing a personal note on a ticket, for which he was terminated, did not rise to the level of gross misconduct as defined by statute. We agree. Under W. Va.Code § 21A-6-3(2) (1996) gross misconduct is defined as:

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 while at work; [183]*183reporting to work under the influence of any controlled substance, or being under the influence of any controlled substance while at work; arson, theft, larceny, fraud or embezzlement in connection with his work; or any other gross misconduct[J

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522 S.E.2d 909, 206 W. Va. 180, 1999 W. Va. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/university-of-west-virginia-board-of-trusteeswest-virginia-university-v-wva-1999.