Thomas P. Maroney
Fred F. Holroyd
Charleston, West Virginia Holroyd & Yost
Attorney for the Petitioner Charleston, West Virginia
Attorney for the Respondent,
Executive Air Terminal, Inc.
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICES DAVIS and MAYNARD dissent and reserve the right to file dissenting
opinions.
CHIEF JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
1. “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).
2. “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).
3. “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).
4. For 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.
To the extent
that UB Services, Inc. v. Gatson, 207 W. Va. 365, 532 S.E.2d 365 (2000), implemented a
definition for gross misconduct inconsistent with the foregoing, it is expressly overruled.
5. Except where an employee has received a prior written warning, the phrase,
“other gross misconduct,” in West Virginia Code § 21A-6-3(2) evidences the legislature's
intent to provide some element of discretion in the Board and reviewing courts, based upon
the peculiar facts of each case.
6. Where the catch-all provision of “other gross misconduct” in West Virginia
Code § 21A-6-3(2) is utilized as a basis for denial of all unemployment compensation
benefits in the absence of a qualifying prior written warning, the employer is required to
furnish evidence that the act in question rises to a level of seriousness equal to or exceeding
that of the other specifically enumerated items, and a resolution of matters brought under this
subdivision must be analyzed on a case-by-case basis.
7. 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 counsel, 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.
Similarly, in Courtney v. Rutledge, 177 W. Va. 232, 351 S.E.2d 419 (1986),
this Court employed the Michigan definition of misconduct to conclude that because written
instructions provided by an employer did not indicate that failure to follow the instructions
would result in the employee's termination, an employee who failed to follow the written
instructions had not engaged in conduct falling within the statutory definition of gross
misconduct. The employee was deemed guilty of simple misconduct and was thus subject
to only a six week disqualification from unemployment compensation benefits. Id. at 235-36,
351 S.E.2d at 422.
In Peery, this Court once again employed the Michigan definition of
misconduct and held that a claimant may be disqualified from receiving unemployment
benefits for misconduct evincing such willful and wanton disregard of employer's interest
as is found in deliberate violations or disregard of standards of behavior which employer has
right to expect of an employee. 177 W. Va. at 551, 355 S.E.2d at 44. The Peery Court
concluded that the employee's refusal to drive a truck over mountainous roads after working
a full shift did not constitute misconduct where the employee had expressed his belief to
employer that driving the route in an exhausted condition after five hours of strenuous labor
would risk his life or the lives of others. Id. at 553, 355 S.E.2d at 46. “The term
'misconduct' should be construed in a manner most favorable to not working a forfeiture.
The penal character of the provision should be minimized by excluding cases not clearly
intended to be within the exception denying unemployment compensation benefits.” Id. at
551, 355 S.E.2d at 44.
In Foster v. Gatson, 181 W. Va. 181, 381 S.E.2d 380 (1989), this Court again
used the Michigan definition of misconduct and held that a driver who had been negligent
on the job had not engaged in misconduct for purposes of unemployment compensation
disqualification. In Ohio Valley Medical Center, Inc. v. Gatson, 202 W. Va. 507, 505 S.E.2d
426 (1998), this Court found that the lower court had properly concluded that a nurse's
misconduct in failing to administer an antibiotic to a patient and in improperly completing
order sheets, was not so negligent as to constitute gross misconduct. The Court reasoned as
follows:
200 W. Va. at 660, 490 S.E.2d at 747 (citations omitted); see also Summers v. Gatson, 205
W. Va. 198, 517 S.E.2d 295 (1999).
First, it appears that neither the Michigan statute
(See footnote 6)
under examination in Carter
nor the Wisconsin statute in Boynton Cab Co., from which the Michigan court adopted its
Carter definition, contained a statutory distinction between “misconduct” generally and some
form of aggravated misconduct, such as “gross” misconduct, found in our statute. Secondly,
in this Court's present attempt to fashion a workable differentiation between simple
misconduct and gross misconduct, we find it instructive to examine the methodology
employed by other jurisdictions which employ a statutory distinction between simple
misconduct and gross misconduct.
In the present case it appears that the circuit court did
carefully examine the conduct of Mary K. Bleifus and did
conclude that it was negligent but that it was not so negligent as
to constitute “gross misconduct” which would disqualify her
from receiving unemployment compensation benefits. The facts
do create some doubt, but it appears that the circuit court
favored the construction which did not work a disqualification.
This is precisely what the court was required to do by Peery v.
Rutledge. . . .
202 W. Va. at 510-11, 505 S.E.2d at 429-30.
In Metropolitan Life Insurance Co. v. Gatson, 200 W. Va. 656, 490 S.E.2d 743
(1997), this Court once again utilized the Michigan definition for misconduct in affirming
an award of benefits to an employee who had been discharged for insubordination in
connection with using a privately retained and paid secretary. We reasoned as follows:
If Mr. Cutright had continued to allow his privately retained
secretary to access Metropolitan's records after receiving written
conformation [sic] of the prohibition, such acts would constitute
“misconduct” because they would be a deliberate violation of
the company policy and they would “show an intentional and
substantial disregard of the employer's interest.”
In UB Services, Inc. v. Gatson, 207 W. Va. 365, 532 S.E.2d 365 (2000), this
Court concluded that a claimant's act of savagely beating a co-worker during a domestic
dispute at the claimant's residence was so outrageous that it shocked the conscience and
constituted gross misconduct, despite the fact that the beating did not occur on the
employer's premises. 207 W. Va. at 369, 532 S.E.2d at 369. However, in the course of
reaching its conclusion, the UB Services Court characterized the Michigan definition of
misconduct, found in Carter and quoted above,
(See footnote 5)
as a definition of gross misconduct, not just
“misconduct.” Because that characterization appears to be a departure from prior case law
in this state and elsewhere, we pause for a closer look at the context in which that popular
definition has been employed here and elsewhere.
Many of these statutory guidelines discuss gross misconduct in terms of its character as a criminal violation of some nature. For instance, the definition of gross misconduct in several states is couched in terms of whether the action of the employee qualifies as criminal misconduct. In KBI, Inc. v. Review Board of Indiana Department of Workforce Development, 656 N.E.2d 842 (Ind. App. 1995), for example, the Indiana court examined Indiana Code § 22-4-15-6.1, addressing the issue of discharge for gross misconduct, and relied upon specific statutory language to the effect that “'gross misconduct'
includes a felony or a Class A misdemeanor committed in connection with work but only if
the felony or misdemeanor is admitted by the individual or has resulted in a conviction.” 656
N.E.2d at 848, quoting Indiana Code § 22-4-15-6.1. The Indiana definition for simple
misconduct, almost identical to the Michigan definition adopted by this Court, was explained
as follows in Arthur Winer, Inc. v. Review Board of Indiana Employment Security Division,
95 N.E.2d 214 (Ind. App. 1950):
It is conduct 'evincing such wilful or 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.
95 N.E.2d at 216 (internal citations omitted); see also Meulen v. Review Bd. of Indiana
Employment Sec. Div., 527 N.E.2d 729, 730 (Ind. App. 1988); White v. Review Bd. of
Indiana Employment Sec. Div., 280 N.E.2d 64,65 (Ind. App. 1972).
In Kansas, gross misconduct is simply defined as “conduct evincing extreme,
willful or wanton misconduct. . . .” K.S.A. 44-706(b)(1) (2000). The Kansas statute
provides that misconduct is “a violation of a duty or obligation reasonably owed the
employer as a condition of employment.” Id; see also National Gypsum Co. v. State
Employment Sec. Bd. of Review, 772 P.2d 786, 789 (Kan. 1999).
In Nebraska, “misconduct” is not specifically defined by statute, but it has generally been defined to include behavior which evidences
(1) wanton and willful disregard of the employer's interests, (2)
deliberate violation of rules, (3) disregard of standards of
behavior which the employer can rightfully expect from the
employee, or (4) negligence which manifests culpability,
wrongful intent, evil design, or intentional and substantial
disregard of the employer's interests or of the employee's
duties and obligations.
Stuart v. Omaha Porkers, 331 N.W.2d 544, 546 (Neb. 1983). In distinguishing between
simple misconduct and gross misconduct, the Nebraska court noted as follows in Poore v.
City of Minden, 464 N.W.2d 791 (Neb. 1991): “The term 'gross' is defined by Webster's
Third New International Dictionary, Unabridged 1002 (1981) as 'b(1) glaringly noticeable:
FLAGRANT ... (2): OUT-AND-OUT, COMPLETE, UTTER, UNMITIGATED, RANK.'”
464 N.W.2d at 793.
In Maryland, the statutory scheme is divided into misconduct, aggravated misconduct, and gross misconduct. The statutory definition of gross misconduct is provided by Maryland statute, Labor & Employment § 8-1002, as follows: “conduct of an employee that is: (i) deliberate and willful disregard of standards of behavior that an employing unit rightfully expects and that shows gross indifference to the interests of the employing unit; or (ii) repeated violations of employment rules that prove a regular and wanton disregard of the employee's obligations. . . .” The reviewing courts in Maryland have recognized that “[t]here are no hard and fast rules for determining what in the particular employment context
constitutes 'deliberate and willful misconduct.'” Department of Labor, Licensing and
Regulation v. Muddiman, 708 A.2d 47, 54 (Md. App. 1998). Such a determination will be
altered with individual cases, and the impropriety of the conduct under examination must
be judged within the particular employment context in which it occurs. Employment Sec. Bd.
of Md. v. LeCates, 145 A.2d 840, 844 (Md. App. 1958). Certain types of conduct will be
so egregious that they will be considered misconduct even where no specific rule prohibits
such conduct. Id.
In Giles v. District of Columbia Department of Employment Services, 758
A.2d 522 (D.C. App. 2000), the District of Columbia Court of Appeals analyzed D.C.Code
§ 46-111(b)(1) (1996), providing that the term gross misconduct shall be “determined under
duly prescribed regulations.” 758 A.2d at 524-25, quoting D.C. Code § 46-111(b). The
Giles court found that according to regulations interpreting the amendments, 7 DCMR § 312
(1994), gross misconduct includes such acts as sabotage; unprovoked assault or threats;
arson; theft or attempted theft; dishonesty; insubordination; repeated disregard of reasonable
orders; intoxication or the use of or impairment by an alcoholic beverage, controlled
substance, or other intoxicant; willful destruction or property; and repeated absences or
tardiness after a warning. 758 A.2d at 525 n.3. The regulations defined simple misconduct
as “'an act or omission by an employee which constitutes a breach of the employee's duties
or obligations to the employer, a breach of the employment agreement or contract, or which
adversely affects a material employer interest . . . includ[ing] those acts where the severity,
degree or other mitigating circumstances do not support a finding of “gross misconduct.”'”
758 A.2d at 525, quoting 7 DCMR § 312. Examples of misconduct provided by the
regulations include: a minor violation of an employer's rules; unauthorized personal
activities during business hours; absences or tardiness whose number or proximity in time
does not rise to the level of gross misconduct; and inappropriate use of profane or abusive
language. 758 A.2d at 525 n.4.
Thus, we believe that the legislature's provisions regarding gross misconduct
can be divided into three distinct categories: (1) those specifically enumerated acts which
shall be considered gross misconduct; (2) items which may be interpreted to be “other gross
misconduct;” and (3) acts of misconduct for which the employee has received prior written
warning that continued violation will result in employment termination. Except where an
employee has received a prior written warning, the phrase, “other gross misconduct,” in
West Virginia Code § 21A-6-3 evidences the legislature's intent to provide some element
of discretion in the Board and reviewing courts, based upon the peculiar facts of each case.
If, for example, the nature of the employer's business rendered an act of misconduct
particularly dangerous, shocking, or egregious, the misconduct could legitimately be
elevated to gross misconduct for purposes of determining unemployment compensation
eligibility. Where the catch-all provision of “other gross misconduct” in West Virginia Code
§ 21A-6-3 is utilized as a basis for denial of all unemployment compensation benefits in the
absence of a qualifying prior written warning, the employer is required to furnish evidence
that the act in question rises to a level of seriousness equal to or exceeding that of the other
specifically enumerated items, and a resolution of matters brought under this subdivision
must be analyzed on a case-by-case basis. Moreover, placement of a particular act in the
category of gross misconduct should be carefully reviewed and should not be undertaken
unless it is clear that such acts constitute gross misconduct as defined by the legislature.
We conclude that the West Virginia construct mandates that simple
misconduct includes those elements identified in Kirk, Federoff, Courtney, Peery, Foster,
and Metropolitan Life, as based upon the Michigan definition of misconduct. Thus, 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.
In the present case, while the employer contends that its exposure to liability
as a result of the Appellant's actions creates a foundation for a finding of gross misconduct,
we do not conclude that the Appellant's act of concealing his license suspension clearly falls
within the legislature's enumeration of acts constituting gross misconduct. The Appellant's
deception did not involve destruction of property, assault, alcohol or controlled substances,
arson, theft, larceny, fraud, embezzlement, or an instance in which the Appellant had
received prior written notice that his continued acts may result in termination of
employment. See W. Va. Code § 21A-6-3. The only other legislatively authorized method
of elevating the act to the level of gross misconduct would be inclusion within the catchall
phrase, “other gross misconduct.” Based upon our review of the record, as well as the actual
and potential ramifications of the Appellant's actions upon the business of the employer, we
do not believe that the Appellant's actions clearly constituted gross misconduct. As the
Peery Court succinctly stated and we quoted above, “[t]he penal character of the provision
should be minimized by excluding cases not clearly intended to be within the exception
denying unemployment compensation benefits.” 177 W. Va. at 551, 355 S.E.2d at 44.
We consequently conclude that Mr. Dailey engaged in simple misconduct by
failing to indicate that his driver's license had been suspended and by permitting his
employer to continue to believe that he maintained a valid driver's license from his hiring
date of May 1, 2000, to his termination date of June 6, 2000. The Appellant's conduct
clearly constituted willful and wanton disregard of the employer's interests and thus satisfies
the definition of misconduct utilized by this Court and other jurisdictions. The Appellant's
conduct does not, however, constitute gross misconduct as that term is contemplated by the
legislature. This Court has unyieldingly refrained from altering the tenor of a legislative
enactment by appending additional elements to a statute. Where a statute is unambiguous,
the incorporation of additional words, terms, or provisions is not the domain of the courts.
Mallamo v. Town of Rivesville, 197 W. Va. 616, 477 S.E.2d 525 (1996); Peyton v. City
Council of Lewisburg, 182 W. Va. 297, 387 S.E.2d 532 (1989); State v. Elder, 152 W. Va.
571, 165 S.E.2d 108 (1968).
Based upon the foregoing, we reverse the determination of the Board and the
lower court and remand for further proceedings consistent with this opinion.