Elizabeth D. Harter, Esq.
Randall S. Elkins, Esq.
Ricklin Brown, Esq. Charleston, West Virginia
William G. Anderson, Jr., Esq. Attorney for Appellee The
Bowles Rice McDavid Graff & Love Board of Review of The
Charleston, West Virginia West Virginia Bureau of
Attorneys for Appellant Employment Programs
James M. Casey, Esq.
Pt. Pleasant, West Virginia
Attorney for Appellee Zickafoose
JUSTICE STARCHER delivered the Opinion of the Court.
This action is before this Court upon an appeal from an order of the Circuit
Court of Kanawha County, entered on February 3, 1999, affirming a January 2, 1996
decision of the West Virginia Bureau of Employment Programs (BEP) Board of Review
that had affirmed a November 16, 1995 decision of an Administrative Law Judge (ALJ)
of the BEP. The Administrative Law Judge reversed the October 6, 1995 decision of the
BEP Deputy which had denied unemployment compensation benefits to appellee Darrell B.
The appellant, UB Services, Inc. (UB), argues that the BEP deputy properly denied unemployment compensation to Zickafoose after Zickafoose had been terminated from his employment for gross misconduct -- the beating of a co-worker. UB contends that the decision of the ALJ to reverse the deputy, and the decisions of the BEP Board of Review and the circuit court to affirm the reversal, were improper because UB terminated Zickafoose for gross misconduct. For reasons explained in this opinion, we reverse the order of the circuit court.
We have previously defined gross misconduct as:
. . . conduct evincing such willful and wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards or 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.
Kirk v. Cole, 169 W.Va. 520, 524, 288 S.E.2d 547, 550 (1982) (emphasis added), quoting, Carter v. Michigan Employment Security Commission, 364 Mich. 538, 111 N.W.2d 817 (1961). Gross is defined in Black's Law Dictionary 702 (6th ed. 1990) as [o]ut of all measure; beyond allowance; flagrant; shameful . . . Such conduct as is not to be excused. W.Va. Code, 21A-6-3(2) provides for disqualification of unemployment compensation for gross misconduct and defines such conduct as:
[m]isconduct 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; reporting 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[.]
By including the phrase or any other gross misconduct, the Legislature demonstrated its recognition that situations might arise that would not easily fit into the more specific examples of misconduct set forth in the statute. In an effort to balance the public policy of providing a measure of security for unemployed individuals in accordance with W.Va. Code, 21A-1-1, supra, against the public policy that individuals should not benefit from their own misdeeds, we think that the Legislature did not intend disqualification from unemployment compensation for off-duty gross misconduct unless the conduct or its effects had some substantial nexus to the employment such that the employee could no longer effectively perform the job for which he or she was employed.
There are not many cases that address off-duty misconduct in regard to unemployment compensation.See footnote 3 3 In Johnson v. Commonwealth, Unemployment Compensation Board of Review, 94 Pa.Cmwlth. 24, 502 A.2d 738 (1986), an employee was charged with murdering a co-worker -- a woman who had been living with the employee. The murder occurred off the work premises and did not involve work-related issues, but rather arose from a personal relationship. While awaiting trial the employee sought unemployment compensation. The court held in Johnson that the employee had properly been denied unemployment compensation because the conduct of the employee would have a serious and disquieting effect on the other employees.
In Muscatell v. Employment Division, 77 Or.App. 24, 711 P.2d 192 (1985) an employee assaulted a co-worker while off-duty. The court held in Muscatell that disqualification from unemployment compensation was appropriate as beating up and robbing a fellow employee, whether on the job or otherwise, was so connected with the work -- because it insures an intolerable level of tension, if not downright fear, on the job[.] 77 Or.App. at 28, 711 P.2d at 193.
In Schmidt v. City of Duluth, 346 N.W.2d 671 (Minn.App. 1984) an animal shelter technician was convicted of second-degree assault after he and a friend became intoxicated, and fired three shots from a shotgun at a residence in order to frighten the inhabitants. The court held in Duluth that an employee could properly be denied unemployment compensation when, by reason of his action, he can no longer effectively perform the services for which he was employed. Id. at 674. The court stated that as a shelter technician, the employee was hired to enforce laws and ordinances and that due to his criminal conduct, the employee was no longer capable of enforcing the law.
In the case before us, the conduct of Zickafoose in savagely beating a co- worker, even if it occurred off-duty, would have created such an atmosphere of fear and tension at his place of employment that he no longer would have been capable of performing his duties as a supervisor. In addition to the fear created at the work place, UB, as a self- insured company, was forced to pay the medical bills of Ms. S., and was forced to go without her services for more than 6 months. UB also faced the threat of liability for employing an individual known to have a violent history.See footnote 4 4 All of these elements combined to create tension in the work area.
Zickafoose, in addition to filing for unemployment compensation, also filed a complaint in the Circuit Court of Mason County on September 16, 1997, alleging that UB had violated provisions of COBRA,See footnote 5 5 had violated the Americans with Disabilities Act of 1990, and had breached its employment contract with Zickafoose. The case was removed to federal court and, following a motion for summary judgment, the court entered judgment in favor of UB on the COBRA and employment contract claims. UB's alleged violation of the Americans with Disabilities Act was also dismissed for Zickafoose's failure to exhaust his administrative remedies. The United States District Court determined that for purposes of COBRA benefits, Zickafoose engaged in gross misconduct, and was properly denied the opportunity for COBRA benefits. Zickafoose v. UB Services, Inc., 23 F.Supp. 2d 652 (S.D. W.Va. 1998).
The District Court determined that the issue of off-duty gross misconduct in connection with COBRA benefits was a case of first impression. The court held that gross misconduct for purposes of COBRA includes non-work related outrageous behavior if there is a substantial nexus between the behavior and the working environment such that the effects of the intolerable behavior extend into the employment arena. 23 F.Supp.2d at 657. The District Court determined that the assault produced not only fear and tension among other employees but it also cast serious doubt upon Zickafoose's ability to continue in his capacity to supervise.
We agree with the District Court's rationale in Zickafoose, and hold that unemployment compensation may properly be denied for off-duty gross misconduct if there is a substantial nexus between the gross misconduct and the work environment such that the effects of the gross misconduct extend substantially into the work area.See footnote 6 6
In the case before us, the act of savagely beating a co-worker is so outrageous
that it shocks the conscience and, therefore, falls under the definition of gross misconduct.See footnote 7
Additionally, such a vicious assault on a co-worker would have inherently created an
atmosphere of fear and distrust on the job site.
at work). W.Va. Code, 21A-6-3 supra, directly deals with drug and alcohol use both on and off-duty.
employer. See generally, Woo v. Putnam County Board of Education, 202 W.Va. 409, 504 S.E.2d 644 (1998) (per curiam).