Keithann Widner v. Mike Jones, Chair of the W. Va. Bureau of Employment Programs

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Keithann Widner, FILED
Petitioner Below, Petitioner June 28, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs.) No. 12-0964 (Kanawha County 11-AA-53) OF WEST VIRGINIA

Mike Jones, Chair of the West Virginia
Bureau of Employment Programs Board
of Review; James G. Dillon, member of the
Board of Review, Carole A. L. Bloom, member
of the Board of Review; Russell Frye, Acting
Director for Work Force West Virginia; and
Charleston Area Medical Center, Employer,
Respondents Below, Respondents

MEMORANDUM DECISION

Petitioner Keithann Widner, by counsel Bruce Perrone, appeals the “Order of Respondent
Charleston Area Medical Center, Inc. Denying Petitioner’s Appeal of Respondent Board’s
Disqualification of Unemployment Benefits” entered by the Circuit Court of Kanawha County
on June 25, 2012, denying petitioner unemployment compensation benefits. The employer
Charleston Area Medical Center, Inc. (“CAMC”), by counsel L. Kevin Levine, has filed a
summary response, to which petitioner filed a reply.

The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

Petitioner was employed by CAMC as a coder from July 2, 2007, until she was
terminated on October 28, 2010. Petitioner received a written warning for falling asleep on the
job in July of 2010. Subsequently, petitioner was caught sleeping on the job. In September of the
same year, petitioner received another written warning for failing to follow CAMC core values.
As a result of petitioner’s performance she received a performance improvement plan. In
October of 2010, petitioner received a written warning for a billing mistake and was caught
sleeping on the job again. Petitioner was discharged on October 28, 2010, for sleeping at work,
which constituted gross misconduct.

Petitioner filed a claim for unemployment compensation benefits with WorkForce West
Virginia. On November 15, 2010, a deputy issued an initial decision disqualifying petitioner

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from benefits beginning October 24, 2010, through December 11, 2010, for simple misconduct
pursuant to West Virginia Code § 21A-6-3(2). Petitioner timely appealed the deputy’s decision
to the administrative law judge (“ALJ”). The ALJ reversed the deputy’s decision and held that
petitioner was discharged for an act of gross misconduct because she continued to sleep at work
after receiving prior written warnings in violation of CAMC policy. Petitioner then timely
appealed to the Board of Review (“Board”), which issued its opinion on March 10, 2011, that
affirmed and adopted the ALJ’s decision in its entirety. Petitioner appealed to the Circuit Court
of Kanawha County, claiming the Board’s decision was erroneous.

On appeal, petitioner first argues that the circuit court erred in affirming the ALJ’s
decision because before the gross misconduct penalty is triggered, the employer must first show
that the specific acts are misconduct, and that the employee was discharged for the same type of
act. Petitioner also argues that involuntary acts, such as those caused by illness, cannot be
considered an act of misconduct when determining whether an applicant should be denied
unemployment compensation. Petitioner also argues that the rules of liberality require reversal
because CAMC failed to prove that her conduct fell within the appropriate disqualification
provision.

This Court has held:

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 Court has also held:

Findings of fact by the Board of Review of the West Virginia Department of
Employment Security, in an unemployment compensation case, should not be set
aside unless such findings are plainly wrong; however, the plainly wrong doctrine
does not apply to conclusions of law by the Board of Review.

Syl. Pt. 1, Kisamore v. Rutledge, 166 W.Va. 675, 276 S.E.2d 821 (1981).1 Upon our review, the
Court concludes that the circuit court did not improperly review the Board’s decision nor did it
err in affirming it. Having reviewed the circuit court’s “Order of Respondent Charleston Area
Medical Center, Inc. Denying Petitioner’s Appeal of Respondent Board’s Disqualification of
Unemployment Benefits” entered on June 25, 2012, we hereby adopt and incorporate the circuit
court’s well-reasoned findings and conclusions as to the assignments of error raised in this
appeal. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum
decision.

For the foregoing reasons, we find no error in the decision of the circuit court and its June
25, 2012 order affirming the board’s decision.
1
Prior to 2007, Workforce West Virginia was known as the Bureau of Employment
Programs. See W.Va. Code § 21A-1-4 (2009).
2

 Affirmed.

ISSUED: June 28, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

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