Kathryn Reed Bayless
Princeton, West Virginia
Attorney for the Petitioner
J. W. Barringer
Stone, McGhee, Feuchtenberger & Barringer
Bluefield, West Virginia
Attorney for the Respondents,
Morefield and Meuwissen
This Opinion was delivered PER CURIAM.
"Unemployment compensation statutes, being remedial in nature, should be liberally construed to achieve the benign purposes intended to the full extent thereof." Syllabus point 6, Davis v. Hix, 140 W.Va. 398, 84 S.E.2d 404 (1954).
By an order entered on February 26, 1991, the Circuit
Court of Kanawha County reversed a decision of the West Virginia
Department of Employment Security relating to the eligibility of
two individuals, Billy J. Morefield and Joseph Meuwissen, to
receive unemployment compensation benefits and ruled that they were
eligible to receive benefits. The Department of Employment
Security and Board of Review of that department had found that both
Mr. Morefield and Mr. Meuwissen were ineligible to receive benefits
from July 29, 1984, because they were not available for full time
work for which they were fitted by prior training or experience.
In the present appeal, the Mercer County Board of Education, Mr.
Morefield and Mr. Meuwissen's former employer, contends that the
circuit court erred in reversing a ruling of the Department of
Employment Security. After reviewing the record, this Court
disagrees and affirms the judgment of the Circuit Court of Kanawha
Billy J. Morefield and Joseph Meuwissen, the claimants in this employment security case, worked for the Mercer County Board of Education as school psychologists until they were terminated effective June 30, 1984. They were terminated because the Board of Education made a determination that it would be more cost effective to obtain psychological services of the type provided by Mr.
Morefield and Mr. Meuwissen on a private contract basis rather than
on an in-house basis.
Subsequent to losing their jobs, Morefield and Meuwissen
applied for unemployment compensation benefits, and the Department
of Employment Security found that they were entitled to the
benefits beginning in July, 1984. The employer, the Mercer County
Board of Education, on February 28, 1985, protested the award. The
Board of Education claimed that Mr. Morefield and Mr. Meuwissen had
failed to apply for available suitable work and that both had
failed to accept suitable work when offered.See footnote 1
The Deputy Commissioner of the Department of Employment
Security denied the Board of Education's protest, and as a
consequence, hearings were conducted on the issues before an
administrative law judge in May, July, August, and October, 1985.
At the conclusion of the hearings, the administrative law judge found that both Mr. Morefield and Mr. Meuwissen were ineligible for the receipt of benefits from July 29, 1984, forward because they were not available for full time work for which they were fitted by prior training or experience. This finding was
premised upon the failure of Morefield and Meuwissen to seek
employment and make job contacts with employers offering employment
in their area of work. The administrative law judge further found
that claimant Morefield had refused to accept offers of employment
beginning in July, 1984. Both offers had been made by the former
employer, the Mercer County Board of Education. The first was for
a permanent substitute position in Mercer County schools in the
learning disability area; and the second was an offer for a
principal internship position in the schools. The administrative
law judge also found that both types of employment constituted
suitable offers for work and that Mr. Morefield had failed to show
good cause for his failure to accept those positions.
Mr. Morefield and Mr. Meuwissen appealed the
determination that they were ineligible to the Board of Review of
the Department of Employment Security, and the Board of Review
affirmed the administrative law judge's findings. Mr. Morefield
and Mr. Meuwissen then appealed to the Circuit Court of Kanawha
County. By order entered February 26, 1991, the circuit court
reversed the Board of Review's decision and essentially found that
the Board of Review was plainly wrong in its findings of fact and
that it had incorrectly decided the questions of law.
In the present proceeding, the Board of Education argues that the Board of Review was not plainly wrong in making its findings of fact and that it did not err in applying the law to the
facts of the case when it ruled that the claimants were ineligible
for benefits due to their unavailability for full time work.
The controversy in this case centers around two factual
questions. The first is whether claimants Morefield and Meuwissen
made reasonable attempts to obtain employment with two private
agencies which had openings for psychologists in the claimants'
area of employment. A sub-question related to this is whether the
claimants' failure to make reasonable attempt to obtain such
employment constituted a fact rendering them ineligible to receive
unemployment compensation benefits, provided such employment was
available. The second factual question is whether claimant
Morefield's refusal to accept two positions offered to him by the
Board of Education of Mercer County rendered him ineligible to
obtain unemployment compensation benefits.
The evidence adduced during the hearings in this case
showed that the opportunities for psychologists with the claimants'
qualifications were limited to private practice or employment with
two agencies, the Southern Highland Mental Health Center and the
Southern West Virginia Regional Health Council. In addition, there
were some teaching positions available at three area colleges which
apparently were not really comparable to the claimants' prior work.
As previously indicated, the first factual question in this case is
whether the claimants made reasonable attempts to obtain employment
with these employers.
Claimant Meuwissen, during the hearings in this case, testified that he applied by mail to the Southern West Virginia Regional Health Council for an opening in that agency. He further testified that he did not receive a response to his application and that he assumed that the agency was not interested in his services. Additional testimony from Patrick Farley, the director of psychological services of the other private employer, the Southern Highland Community Mental Health Center, indicated that dissention had arisen over the dismissal of school psychologists by the Mercer County Board of Education and the fact that the Mental Health Center was now providing the same services to the Board. He, therefore, believed that it was in its best interest to hire persons outside of the immediate area to fill the openings which it had available. Mr. Farley stated that his agency had directly contacted thirty-seven West Virginia psychologists and seventy-one Virginia school psychologists about the positions which it had available and had requested referrals, but that the agency had not contacted Mr. Morefield and Mr. Meuwissen.
In the present proceeding, Mr. Morefield and Mr. Meuwissen take the position, as they did before the circuit court, that the fact that claimant Morefield did not receive a response to his application to the Southern West Virginia Regional Health Council, as well as the fact that the Southern Highland Community Mental Health Center was not interested in hiring individuals who had been embroiled in the controversy arising from the school
board's dismissal of its psychologists, show that there was not a
reasonable opportunity for them to have been employed with these
agencies. They further point out that the evidence adduced showed
that any positions at the Southern Highland Community Mental Health
Center would not be on a regular employment basis with fringe
benefits and a set salary. Rather, it was to involve a type of
contract arrangement, and they argue that even if they had been
offered such positions, the offers would not have been offers of
appropriate comparable work.
In addressing the question of whether the claimants were
ineligible for unemployment compensation benefits because of their
refusal to take or seek positions with these two private employers
constituted a showing that they were unavailable for employment,
the circuit court concluded that it did not. The court said the
Board of Education:
Cannot fire full time employees with benefits, practicing within the scope of their certification, and then prevent them from receiving unemployment benefits for refusing essentially the same job, without benefits, and with a decreased salary and a questionable legal status. The purpose of these statutes are remedial in nature and are to assist the claimant while he finds "substantially equivalent employment."
The next factual question during the proceedings below was whether Mr. Morefield rendered himself unavailable for employment when he refused two positions offered to him by the board of education. The positions offered were that of a permanent
substitute teacher and that of a principal intern. The circuit
court found that the offer of substitute teacher employment did not
constitute an offer of regular employment, given the fact that
being placed on a substitute list does not mean that an employee
will necessarily work at all. He would actually have worked only
if a substitute position was available. The court further found
that acceptance of the intern position would have required claimant
Morefield to enroll in a doctoral program. The court, in effect,
found that it was not an offer of employment substantially
equivalent to that which the claimant had previously held.
This Court has indicated that unemployment compensation
statutes should be liberally construed to insure that unemployed
claimant receive benefits the fullest extent possible. Davis v.
Hix, 140 W.Va. 398, 84 S.E.2d 404 (1954). The exact rule, as
stated in syllabus point 6 of Hix, provides: "Unemployment
compensation statutes, being remedial in nature, should be
liberally construed to achieve the benign purposes intended to the
full extent thereof."
In spite of this, even an eligible claimant may be
disqualified from receiving unemployment compensation benefits for
a number of causes specified in W.Va. Code, 21A-6-3. Among the
causes, W.Va. Code, 21A-6-3(3), provides for disqualification of a
For the week in which he failed without good cause to apply for available, suitable work,
accept suitable work when offered, or return
to his customary self-employment when directed
to do so by the commissioner, and for the four
weeks which immediately follow for such
additional period as any offer of suitable
work shall continue open for his acceptance.
Such disqualification shall carry a reduction
in the maximum benefit amount equal to four
times the individual's weekly benefit amount.
Rather clearly, before a claimant is disqualified under
this statutory provision, which apparently formed the Board of
Employment Security's and Board of Review's rulings disqualifying
Mr. Morefield and Mr. Meuwissen, not only must a claimant fail to
apply (or accept) available work, but the work must be "suitable."
West Virginia Code, 21A-6-6, speaks to what constitutes
Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied to an individual, otherwise eligible, for refusing to accept new work under any of the following conditions: . . . (2) If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.
In the present case, there was a substantial conflict in evidence as to whether there was work available to Mr. Morefield and Mr. Meuwissen. Essentially, the evidence adduced below shows the only really comparable employers to the Board of Education of Mercer County, the former employer, were the Southern Highland Mental Health Center and the Southern West Virginia Regional Health Council. The evidence was somewhat inconclusive as to whether the
Mental Health Center had an available opening for Mr. Morefield and
Mr. Meuwissen. Certainly Mr. Farley's testimony would suggest that
Mr. Morefield and Mr. Meuwissen were not among the class of prime
candidates. Additionally, there was further evidence, which even
though contradicted, would support a conclusion that Mr. Meuwissen
applied to, but received no response from the Southern West
Virginia Regional Health Center. This evidence, read in the
context of the overall evidence of the case, would suggest that
there was no opening for an individual of Mr. Morefield or Mr.
Meuwissen's background with that organization.
Even if such conclusions were not supported by the
record, however, the evidence shows that the work with these
private agencies would not actually have involved continuous
employment, but rather a type of contractual relationship. Rather
clearly, in this Court's view, such contractual relationship would
have been potentially substantially less favorable, especially in
terms of wages and hours, as well as fringe benefits, than full-time employment with the Board of Education of Mercer County. In
this Court's view, the availability of such employment, even if it
were conclusively established, would not be availability of
"suitable" employment within the meaning of W.Va. Code, 21A-6-6.
Similarly, the Court believes that the offer of a position as a permanent substitute to Mr. Morefield did not involve a guarantee of hours, and consequently wages, as favorable as those
which he had previously enjoyed. Likewise, the conditions of the
principal internship, which was offered to him, were substantially
different. The record suggests that to remain eligible for the
internship, claimant Morefield would have been required to fulfill
conditions different from those which were previously a part of his
employment. He would have been required to have applied for and
entered a doctoral program and pursued different education.
In this Court's view, a liberal construction of the
evidence in this case, as is required by Davis v. Hix, supra,
supports the conclusion that "suitable" employment, within the
meaning of W.Va. Code, 21A-6-6, was not available to claimants
Morefield and Meuwissen, that the Board of Review erred in
concluding that it was and that Mr. Morefield and Mr. Meuwissen
were disqualified from receiving unemployment compensation
benefits, and that the Circuit Court of Kanawha County properly
reversed the Board of Review's decision.
For the reasons stated, the judgment of the Circuit Court
of Kanawha County is affirmed.
Footnote: 1Initially there was a claim that Mr. Meuwissen was unavailable for work because he had enrolled for a graduate education course. Later evidence tended to show that the graduate work was part time and was at the same level he had maintained while fully employed. Under the circumstances, the enrollment was not a factor impacting on his availability for work.