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Darrell V. McGraw, Jr.
Attorney General Cohen, Abate & Cohen
Samuel R. Spatafore Fairmont, West Virginia
Assistant Attorney General
Charleston, West Virginia
Attorneys for Board of Trustees/
West Virginia University
Mary B. McLaughlin
Charleston, West Virginia
Attorney for Bureau of Employment Programs
The Opinion was delivered PER CURIAM.
JUDGE RISOVICH, sitting by temporary assignment.
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).
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, Appellee/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.
WVU terminated Aglinsky in July of 1996. The termination occurred as a
result of Aglinsky writing a notation on a ticket that read: Person clapped his hands. He
said I will pay the ticket. What is it $1.50? Aglinsky had previously been counseled by
WVU not to write purported personal messages on tickets.See footnote 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 reversed 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.
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 cases 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; 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[.]
Aglinsky's personal notation on the ticket is not the type of conduct which is outlined as gross misconduct by statute.
The circuit court reasoned that, cumulatively, Aglinsky's misconduct rose to the level of gross misconduct. The circuit court's rationale was premised upon the any other gross misconduct language found in the statute. The statute defines the words any other gross misconduct to include, but not be limited to, any act or acts of misconduct where the individual has received prior written warning that termination of employment may result from such act or acts. WVU insists that its fourth letter of warning to Aglinsky, wherein he was informed that he would be fired for further misconduct, satisfies the requirements of any other gross misconduct. We think not.See footnote 3 3
The circuit court was correct in finding that cumulative misconduct could amount to gross misconduct under the statute. The error, however, committed by the circuit court was its failure to independently examine the underlying misconduct to determine gross misconduct in its cumulative form. In other words, a mere tallying of incidents of misconduct is insufficient to determine if prior misconduct constitutes gross misconduct.
In our examination of the other incidents of misconduct by Aglinsky, we find
that (1) he was warned twice that he failed to write sufficient tickets; (2) he was warned
about improperly filling out a sick leave form; and (3) he received a warning about writing
personal messages on tickets. We believe that it would be unreasonable and contrary to the
legislative intent that the unemployment statute be given a liberal interpretation, to conclude
that the cumulative effect of Aglinsky's misconduct equals gross misconduct. We have not
been called upon, nor do we decide whether such misconduct was sufficient to terminate
Aglinsky. However, we find that cumulatively Aglinsky's misconduct was insufficient to
be categorized as gross misconduct for unemployment compensation purposes.