Per Curiam:
This appeal was filed by Cindy L. Adkins,
Cynthia S. Cooper and Billie J. Gill (hereinafter referred to collectively
as the “Appellants”) from an order of the Circuit Court of Kanawha
County. The circuit court order reversed a decision of the Board of Review,
West Virginia Bureau of Employment Programs (hereinafter referred to as the “Board”).
The circuit court reversed the Board's decision to award unemployment compensation
benefits to the Appellants. (See
footnote 1) The circuit court found that the Appellants were disqualified
from receiving unemployment benefits because they left their employment without
good cause involving fault on the part of their employer, the City of Hinton (See
footnote 2) and the City of Hinton Sanitary Board (hereinafter
referred to collectively as the “City”). (See
footnote 3) Here, the Appellants assign error to the circuit court's
treatment of the City's appeal as a writ of certiorari, allowing new evidence
to be introduced, and in the circuit court's determination that good cause
for resigning was not shown. After listening to the arguments of the parties
and carefully reviewing the record, we affirm the circuit court's order.
The working environment at City
Hall continues to be extremely uncomfortable. The City Hall staff, Billie Gill,
Cindy Adkins and myself, has found ourselves [sic] in a situation where we are
forced to work in a daily atmosphere of fear due to the September 5, 2002 altercation.
We have not been advised as to
what is the current status of Mr. Cyphers. Is he still employed by the City of
Hinton? Is he our supervisor? Will he attack again? These are just a few of the
questions we have. Yet, no one, not the Mayor or members of Council has taken
the time to discuss this situation with us, with the exception of Councilor Wheeler.
We are just wondering what will happen next.
This situation is not only detrimental
to our well-being, but it is not conducive to a work environment. Are we going
to remain under police protection? We feel that the situation has gone beyond
reason for any person to have to endure.
. . . .
As employees of the City of Hinton
and as tax paying citizens, we feel we have the right to work under a nonviolent
work atmosphere; without fear of being harassed or attacked.
The Appellants received no direct response
to their memo. Instead, on October 2, 2002, the City's Mayor sent a memo to the
police chief stating:
I am asking to remove the police officers from their City Hall duty as of today.
Mr. Cyphers was injured
on September 5 and will not return for at least three months. He has not been
at City Hall for more than two weeks. Continuing with extra police duty at City
Hall is not necessary.
Subsequent to the Mayor's memo, Ms. Gill and Ms. Cooper resigned on October
8, 2002; Ms. Adkins resigned on October 9, 2002.
Each Appellant filed for unemployment compensation
after resigning. In a signed statement, given for unemployment benefits, Ms.
Gill gave the following reasons for resigning:
I quit my job on 10-8-02, because
of harassment. The Mayor took office in 7-2001 and since then it has been a constant
battle to work, she has hired a consultant to straighten out problems in [the]
Department and he attacked a person in the office after he was there one hour.
We have had police security there and she has changed job duties that we have
not been trained for, then she is upset and puts false information in the newspapers.
In a signed statement, given for unemployment benefits, Ms. Cooper gave the
following reasons for resigning:
I quit my job on 10/08/02, due
to violence at the work place and the constant harassment by the Mayor of Hinton.
On 09/05/02, an altercation took place at work where a City Councilman was attacked.
The attack was by an individual that the Mayor had appointed. This individual
was arrested for two counts of battery against two police officers and one count
of battery against the Councilman. After this incident, President of the Council,
Larry Meador assigned a policeman to guard the employees 8 hours a day. On 10/02/02
the Mayor removed this policeman stating that the individual who had [the] altercation
had not been in the City Hall for more than two weeks and
would not return for at least 3 months. The City employees had been told by
the Councilman Jordan that this individual would not return to the City Hall,
however, the Mayor stated he would in 3 months. Prior to the altercation the
Mayor would harass the City employees by accusing us of doing things that were
not true.
In a signed statement, given for unemployment benefits, Ms. Adkins gave the
following reasons for resigning:
I quit my job on October 9, 2002,
because of violence and harassment in the workplace. The Mayor of Hinton hired
a male individual on September 5, 2002. This person initially was called the
administrator. Subsequently his title changed 3 more times. He was called a special
police officer at last. On his first date of employment within 2 hours he was
involved in a physical altercation with a Council member. This incident required
the police to be called. This altercation occurred in the same location of my
office. He was arrested for the offense and placed in handcuffs. He was later
removed from the building and taken to the hospital.
He returned to work the following
day, however I did not because I knew he was coming to work. The City employees
were told by the Council not to return to work until the matter was resolved.
I returned to work on the following Wednesday and he was there also. He stayed
about 4 hours and returned the following day for the same. We were instructed
by the Council to have a uniformed police office[r] at the office for the entire
shift while we were working. The police was there even if the man was not. The
officer escorted us in and out of the building, to other rooms etc. We feared
for our safety. The officer was there approximately a month until the Mayor said
we could no longer have him there with us.
There were discrepancies in what
the Mayor was saying. She told Council that he would not be back but she told
the police department that he would not be back for 3 months.
This person was very intimidating.
There was an occasion he entered my office and told me that I had to tell him
where my husband was. (My husband i[s] the chief of police). When I informed
him he was on vacation and had serious family matters to take care of, he pointed
his finger and said he would be back to talk to me.
The claims for unemployment compensation
were initially heard by a Deputy Commissioner for the Board. In three separate
orders the Deputy Commissioner found that each Appellant “was subjected
to violence and harassment in the workplace and the employer failed to correct
the situation.” Consequently, the Deputy Commissioner held that for each
Appellant “no disqualification can be imposed.”
The City appealed the Deputy Commissioner's
decisions. All three appeals were consolidated for hearing before an administrative
law judge. At the conclusion of the hearing, the administrative law judge issued
three separate orders affirming the decisions of the Deputy Commissioner. The
City appealed the decisions of the administrative law judge to the Board. In
three separate orders, the Board adopted the findings of the administrative law
judge and affirmed each decision. (See
footnote 9) The City appealed the Board's orders to the circuit court.
The circuit court, by order entered April 27, 2004, reversed the orders of the
Board and found the Appellants were disqualified from receiving unemployment
compensation benefits. The Appellants thereafter jointly appealed to this Court.
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 also guided by our consistent 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). 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 v. Rutledge,
177 W. Va. 548, 552, 355 S.E.2d 41, 45 (1987). Mindful of these applicable
standards, we will now consider the arguments of the parties.
In addition to improperly characterizing
the appeal as a writ of certiorari, the circuit court considered three affidavits
that were not presented to the lower tribunals. The Appellants contend that this
was error. We agree.
The circuit court was sitting as an appellate
court in it's review of the City's appeal. In the case of Maxwell v. Maxwell,
67 W. Va. 119, 67 S.E. 379 (1910), this Court addressed the issue of an
appellate court's authority to review evidence not submitted to a lower tribunal:
[W]hat is appellate jurisdiction?
Does it include the power to do other than to review upon the record made below?
Does it not relate wholly to the consideration of that which has been acted upon
by the court from whence comes the appeal? May [an appellate] court do an original
thing, act upon something that has never been heard in the court below, and call
that the exercise of appellate jurisdiction? We do not think so. It is not in
reason so to hold. . . .
.
. . [An appellate] court cannot hear evidence other than that brought up for
review, except in the exercise of original jurisdiction. . . .
[This] means that [an appellate court] shall deal only with evidence taken below
and brought up for the purpose of a review of an order or decree made upon it
below. It means that in using our appellate powers we shall consider no other
evidence[.]
Maxwell, 67 W. Va. at 122-123, 67 S.E. at 380-381. “Accordingly,
it is the parties' duty to
make sure that evidence relevant to a judicial determination be placed in the
record before the lower [tribunal] so that [it] may properly [be] consider[ed]
. . . on appeal.” West Virginia Dep't. of Health and Human
Res. ex rel. Wright v. Doris S., 197 W. Va. 489, 494 n.6, 475 S.E.2d
865, 870 n.6 (1996). See also Pearson v. Pearson, 200 W. Va.
139, 145 n.4, 488 S.E.2d 414, 420 n.4 (1997) (“This Court will not consider
evidence which was not in the record before the circuit court.”); Powderidge
Unit Owners Assoc. v. Highland Props., Ltd., 196 W. Va. 692, 700,
474 S.E.2d 872, 880 (1996) ( [T]his Court for obvious reasons, will not consider
evidence or arguments that were not presented to the circuit court for its
consideration[.]”). But see Hall v. Rutledge, 174 W. Va.
816, 819, 329 S.E.2d 890, 892 (1985) (“The Board has the authority under
its own rules and regulations to consider additional evidence not presented
to the administrative law judge[.]”).
Although we found the circuit court committed
error in treating the City's appeal as a writ of certiorari and considering additional
evidence, we do not find that these errors warrant reversal. We have long held
that “[t]his Court may, on appeal, affirm the judgment of the lower court
when it appears that such judgment is correct on any legal ground disclosed by
the record, regardless of the ground, reason or theory assigned by the lower
court as the basis for its judgment.” Syl. pt. 3, Barnett v. Wolfolk,
149 W. Va. 246, 140 S.E.2d 466 (1965). As we will show below, the circuit
court's decision should be affirmed for reasons different than those upon which
it relied.
The Mayor testified that she
did not discuss this situation, and she believed the office staff were working
with a group that wanted her impeached from office. However, the employer should
have taken steps to reassure the workers that a safe working environment would
be maintained. Failure to adequately address these concerns would constitute
fault on the part of the employer which caused the [Appellants] to quit [their]
job.
In support of the Board's decision, Appellants
contend “that workplace violence fears may form a legitimate basis for resigning
one's employment[.]” The Appellants attempt to support this proposition
by citing several cases from other jurisdictions. However, the cases relied upon
by the Appellants are not dispositive. They address the issue of violence, attempted
violence or threats against the employee who resigned, not others. See Condo
v. Board of Review, Dep't of Labor and Indus., 385 A.2d 920, 922 (N.J. Super. Ct. App. Div.
1978) (“The record establishes and the Appeals Examiner found that claimant
complained to the manager of the threats of violence made by his coworker. The
manager held a meeting with the employees to straighten out the problem and told
the coworker that 'he was not allowed to threaten anybody or hurt anybody.' Notwithstanding
this, claimant testified that he was threatened by the coworker as they left
the meeting. Again, he was threatened the night that he left work. Under the
circumstances, claimant was clearly justified in leaving work.”); Taylor
v. Board of Review, 485 N.E.2d 827, 829 (Ohio Ct. App. 1984) (“The record
clearly shows that Elias previously beat appellant, and that Elias subsequently
threatened [appellant] with another physical confrontation. While the employer
assured [appellant] that Elias would not bother him, [appellant] was also told
that the employer could do nothing about Elias. . . . The evidence
clearly shows that appellant had reason to fear that Elias would harm him.”); Coleman
v. Employment Sec. Dep't, 607 P.2d 1231, 1232 (Wash. Ct. App. 1980)
(“Among the reasons that the appellant gave for quitting her job was a
serious physical threat made against her by a male coworker. . . .
[T]he man became upset over a fancied grievance, stormed into the room where
. . . the appellant . . . was . . . and said,
'you know what I'd like to do, I'd like to punch your cheek right down your
throat.' . . . The appellant testified: 'I just sat there with my
mouth shut. I didn't move. He was too close to me. I was afraid. He's a strong
man and I didn't feel like losing my front teeth. And he wasn't in any state
where you could have talked him down either. He was in a blind rage.'”); Hat
Six Homes, Inc. v. State Dep't of Employment, Unemployment Ins. Comm'n,
6 P.3d 1287, 1294 (Wy. 2000) (“The evidence demonstrated that the president
consistently touched Welch with his hands in an inappropriate manner for a
person in a position of power. The record also encompasses episodes of the
vice-president throwing staplers, cellular phones, and drive way alarms about
the office requiring Welch to duck to avoid being struck.”). (See
footnote 13)
The Board's findings of fact fail to show
that any of the Appellants were physically assaulted or threatened by Mr. Cyphers.
Although there was testimony that Ms. Gill placed her hands on Mr. Cyphers when
attempting to breakup the fight with the Councilman, there was no evidence that
Mr. Cyphers assaulted or attempted to assault her or threatened her safety with
physical violence. Further, Ms. Cooper merely observed the fight from a distance
while Ms. Adkins was not even present in the building. (See
footnote 14) There was no evidence that Mr. Cyphers physically assaulted
or threatened the Appellants during the few times that he returned to City Hall
after his fight with Mr. Wheeler.
The Board found that the evidence revealed
that, with regard to Mr. Cyphers' violent outburst, the City “did nothing
to rectify the situation or address the [Appellants'] legitimate safety concerns.” The
evidence presented at the hearing does not support such a finding.
After Mr. Cyphers was removed by police officers,
the City permitted the Appellants to remain at home for three days until safety
concerns could be addressed. The City ultimately decided to have a police officer
remain at City Hall to protect the Appellants
and others from any potential harm by Mr. Cyphers. The police officer remained
at City Hall for approximately one month. Moreover, a subsequent memo by the
Mayor clearly stated that the police officer was going to be removed because
Mr. Cyphers would not be returning to work for at least three months. (See
footnote 15)
In view of the foregoing, we believe the
record adequately demonstrated that the City took reasonable measures to assure
the Appellants' safety in light of Mr. Cyphers' behavior. Consequently, the Appellants'
decision to resign was without good cause involving fault on the part of the
City.