Dailey v. Board of Review, West Virginia Bureau of Employment Programs

Gary DAILEY, Petitioner, REVIEW,

BOARD OF WEST VIRGINIA

BUREAU OF EMPLOYMENT PRO-

GRAMS; Vieweg, F. William Commis-

sioner, Employment Bureau Pro-

grams; Terminal, and Executive Air

Inc., Respondents.

No. 30730.

Supreme Appeals Court of Virginia.

West Sept.

Submitted 2003. Nov. 2003.

Decided

Dissenting Opinion of Justice Nov.

Davis

Concurring Opinion of Justice

Starcher Dec.

Davis, J., opinion dissented and filed in which J.,

Maynard, joined.

Stareher, J., opinion. C. concurred and filed Charleston, Maroney,

Thomas P. for the Petitioner. Holroyd, Yost, Holroyd

Fred F. & Charleston, Respondent, for the Executive Air Terminal.

ALBRIGHT, Justice: (hereinaf- appeal Gary by Dailey This is an 9, 2001, “Appellant”) ter from a November final order of Circuit Court of Kanawha County affirming an order the Board Virginia Review of West Em- Bureau of (hereinafter “Board”) Programs ployment Appellant which held that the had ter- been minated for from Appellant unemploy- conduct and denied the compensation appeal, benefits. On Appellant contends that the Board lower finding court sufficient erred evidence denying gross misconduct and in him unem- compensation ployment thor- benefits. After ough arguments review of record findings The of fact of the Board of counsel, findings of Board we reverse Virginia [West Bureau court and determine Review and the lower Programs] Employment for mis- are entitled Appellant properly discharged reviewing conduct, unless misconduct. We also substantial deference but clearly proceedings findings con- case further court believes remand the wrong. question on review is one opinion. If the sistent with law, given purely of no deference History I.Facts and Procedural judicial court the standard review the Air Appellant was hired Executive is de novo. (hereinafter “Executive”) Terminal, Inc., on further governed review of this matter is Our 1, 2000, Ap- May as a line technician.1 recognition “[u]nem- our consistent driving gasoline pellant’s duties included statutes, ployment compensation being reme required also him to drive off the trucks and nature, liberally should dial be construed gasoline bulk airport property to obtain benign to purposes to intended achieve passengers public on roads. When deliver 6, Syl. Pt. v. full thereof.” Davis extent initially by Execu- Appellant was hired 398, (1954); Hix, 140 W.Va. tive, presented indicated the evidence below 2, Gatson, v. Syl. also Pt. Smittle see represented that he maintained a he (1995); 1, 416, Syl. Pt. W.Va. 465 S.E.2d 873 Subsequent to several valid driver’s license. 417, Cole, v. S.E.2d 396 Perfin attempts copy to obtain a unsuccessful (1985). also that “unem have asserted We license, Executive contacted driver’s ployment compensation statutes be should Virginia Department Motor Vehicles West liberally claimantf.]” construed favor of the Appellant’s that the license had learned Gatson, 117, 119, Davenport 192W.Va. Upon suspended realizing that been in 1996. Syllabus point one S.E.2d performing driving his Appellant was Peery Rutledge, S.E.2d subjecting without valid license and duties (1987), “[disqualifying also instructs that liability, potential dis- Executive to Executive Unemployment Compensa provisions of the Appellant on June based charged the narrowly Law to tion are construed.” upon Virginia his lack of valid West driver’s Ap- The Board concluded that the license.2 III.Discussion pellant gross mis- had been terminated for Appellant unemploy- conduct and denied the Virginia Statutory A. Guidance West compensation benefits. The lower Virginia to West Pursuant Code comí; Ap- affirmed that determination. The 2002), (Repl. § 21A-6-3 Vol. individu pellant appeals to this now Court. disqualified obtaining als are from unem II.Standard of Review ployment for if benefits six weeks3 the ter syllabus point employment v. mination of was due to three of Adkins them indefinitely Gatson, disqualified 395 misconduct and (1994), was explained following if the termination due to miscond this Court question obvious is of review: uct.4 The therefore standard targeted employed indicating Appellant Appellant previously that the was based 1. had been May July activity. through upon from his The absence of the valid Executive union pursue decided appears time he to driver’s be tire exclusive rea- license to employment. argu- Appellant’s discharge. We for find son tire contrary ments to the meritless. Appellant contends that the issue of valid license not the sole basis for his driver’s was Specifically, provides the the statute an individ- Rather, termination. he contends that his in- disqualified is for ual terminated agitated organizing awith union drive volvement which he terminated and the the week in discharge. employer his Our his and caused 21A-6-3(2). W. next six weeks. Va.Codei of that leads to the conclusion that review issue employer attempted copy to of the locate regains eligibility to learning 4. The receive ben- Appellant’s driver’s license days completing working activity. only efits after Valid licenses were his union driver’s employment. serving W. 21A- employees other covered Va.Code in the obtained from other 6-3(2). capacity, Appellant’s and thei'e is no evidence evincing precipitated action which such wdlful and whether the wanton disregard an simple employer’s constituted misconduct or interests as termination is found in deliberate violations or disre- provides misconduct. The statute gard of standards of behavior which distinction, guidance fading on this minimal right expect has the of his provide for simple definition employee, or in negli- carelessness or providing following commentary on gence degree of such or as to recurrence gross misconduct: equal wrongful culpability, manifest in- consisting of Misconduct willful destruc- design, tent or or an evil to show inten- employer’s property; tion of his assault disregard tional and substantial upon person any of his or employee’s interests or of the employer; employee of if such assault obligations duties his employer. place at such committed individual’s On inefficiency, the other hand mere or the course conduct, unsatisfactory good failure in ment; reporting work in an intoxicated performance of inability as the result or condition, being or whde at intoxicated incapacity, ordinary or inadvertencies work; reporting to work the influ- under instances, negligence in good isolated or substance, being ence of controlled judgment faith errors discretion any under the influence of sub- controlled not to be deemed ‘misconduct’within work; arson, theft, larceny, at stance whde meaning the of the statute. fraud or in with embezzlement connection 524, at 288 W.Va. S.E.2d at work; gross other misconduct[.] in This issue was later addressed Federoff Provided, ... purpose That for the this Rutledge, v. 175 W.Va. 332 S.E.2d 855 “any subdivision the words other (1985), that where this Court found the rec- include, not misconduct” shall but be limit- support a finding ord was sufficient to to, any ed act or acts of misconduct where support misconduct but was insufficient a the individual received written employee had conclusion that the been dis- warning that termination of charged Federoff, for misconduct. In may result such act or from acts. many this Court true in “[a]s noted 21A-6-3(2). W. Va.Code jurisdictions, the term ‘misconduct’ is unemployment compensa- not in defined the Virginia B. West Decisional Precedent tion this at statutes of State.” at S.E.2d Court Federoff Cole, In Kirk v. S.E.2d recognized thereafter this Court’s reliance (1982), this Court held that absence from upon Michigan the of misconduct in definition due to did not work dlness constitute miscon- again Kirk and utilized such definition. The employee totally duct and that an not legislative Court examined the Federoff disqualified receiving from subse- benefits regarding gross statements misconduct and quent discharge for her excessive absen- examples the in thereof listed the statute and discussing In teeism due to dlness. the stat- legislature, requiring found that “[t]he utory guidance regarding unemployment writing, obviously notice in intended inter- compensation, adopted Kirk Court defi- ject process minimal into standards due misconduct, explaining nition of as follows: ordinary procedure acts of miscon- where previously This not Court has had occa- disqualification can full for un- trigger duct meaning the term sion consider employment compensation.” 175 W.Va. at unemploy- it is in “misconduct” as used at 860. S.E.2d Because However, compensation statute. in that chose not to er case issue written jurisdictions that have faced with been the warning, unambiguous language “under question general statute, definition of misconduct discharge appellant’s did legislative has evolved. As stated v. Michi- Carter not meet the definition Commission, gan Employment Security warranting permanent disqualifi- misconduct (1961), Mich. receipt N.W.2d 817 cation from the compensation.” is: Id. at S.E.2d at 860. sheets, negligent as to Rutledge, ing order was not so Similarly, Courtney (1986), this Court The Court rea- 351 S.E.2d 419 constitute misconduct. Michigan miscon- employed the definition as follows: soned in- written conclude that because duct to present appeal’s that In the case it employer did provided by an not structions carefully did the con- circuit court examine failure to follow the instructions indicate that Mary K. duct of and did conclude Bleifus termination, employee’s in the would result negligent it was not that it was but that so employee who to follow the written an failed “gross negligent as to constitute miscon- in conduct fall- engaged had instructions disqualify which her from re- duct” would statutory definition of ing within the unemployment compensation ceiving bene- was deemed misconduct. doubt, fits. The facts do create some but simple and was guilty of thus appears it circuit court favored only disqualification subject to six week construction did not work dis- unemployment compensation from benefits. precisely what qualification. This is 235-36, 351 at 422. Id. at required Peery v. Rut- court was to do employed Peery, again In this Court once ledge .... Michigan definition of misconduct and 510-11, at at 429-30. 202 W.Va. 505 S.E.2d may disqualified a claimant from held that receiving unemployment for miscon- benefits Metropolitan Insurance Co. Gat Life evincing such wanton disre- duct willful and son, (1997), 200 W.Va. found gard of as is interest again Michigan once Court utilized disregard of violations or stan- deliberate affirming an definition right employer has dards of behavior which employee who award of benefits to an had employee. expect of an discharged for insubordination con been Peery at 44. conclud- Court S.E.2d using privately nection with a retained and employee’s to drive ed that refusal a secretary. paid We as follows: reasoned working roads after truck over mountainous Outright to allow shift did If Mr. had continued his a full not constitute expressed secretary had his belief to access privately where retained Met- driving receiving the route an ropolitan’s records written after condition five of stren- exhausted after prohibition, conformation of the such [sic] .hours labor would risk life or the lives of uous acts would “misconduct” because constitute Id. at at 46. others. S.E.2d “The they of would be deliberate violation construed in term ‘misconduct’ should be company policy they would “show an working not a for- manner most favorable to disregard intentional substantial provision penal character of the feiture. employer’s interest.” by excluding minimized eases should be not (citations at at 747 200 W.Va. clearly exception intended be within the Gatson, omitted); see also Summers denying unemployment compensation bene- 198, 517 S.E.2d 295 W.Va. at at 44. fits.” Id. S.E.2d Services, Gatson, 207 In UB Inc. v. Gatson, In Foster v. (2000), this con 532 S.E.2d 365 Court (1989), again this used S.E.2d Court savagely that a act of beat cluded claimant’s Michigan definition of misconduct and held dispute ing during a co-worker a domestic at negligent on that a driver who had been outrageous claimant’s was so residence job engaged pur- for had not in misconduct that it shocked the conscience and constitut dis- poses compensation misconduct, gross despite fact that ed qualification. Valley Medical Ohio Cen- Gatson, beating employer’s not ter, did occur on the Inc. v. (1998), premises. 207 S.E.2d at this Court found that the lower However, reaching its the course properly court had concluded that nurse’s conclusion, failing the UB Court character to administer an antibi- Services misconduct, complet- Michigan patient improperly and in definition otic to a ized above,5 22-4-15-6.1, quoted § found in as a Carter ined Indiana Code addressing misconduct, just misconduct, definition “mis discharge the issue of ap conduct.” Because characterization upon specific statutory and relied language pears departure from case law “‘gross to the effect that misconduct’ in- elsewhere, pause in this state and we for a felony cludes a or a A Class misdemeanor popu closer look at the in which that context committed in only connection with work but employed lar definition has been here and felony if the misdemeanor is admitted elsewhere. the individual or has resulted in a convic-

First, tion.” appeal's quoting it 656 N.E.2d at Michigan that neither Indiana Code statute6 under examination Carter nor the 22-4-15-6.1. The Indiana definition Co., in Boynton misconduct, Wisconsin statute simple Cab from for almost identical to the Michigan adopted which the court its Michigan Carter adopted by Court, definition definition, statutory contained a distinction explained Winer, as follows in Arthur generally between “misconduct” and some Inc. v. Review Board Employ- Indiana misconduct, aggravated form of such as Division, Security Ind.App. misconduct, “gross” found in our statute. (1950): N.E.2d 214 Secondly, in present this Court’s attempt to It is ‘evincing such wilful or wan- fashion a workable differentiation between disregard ton employer’s of an interests as simple misconduct, misconduct and we is found in deliberate violations or disre- find it instructive examine the methodolo- gard of standards of behavior which the gy employed by jurisdictions other right expect has the of his employ statutory distinction between sim- employee, or in negligence carelessness or ple misconduct and misconduct. degree of such or recurrence as to mani- Foreign C. Jurisdictions —Distinction equal culpability, wrongful fest intent or Between Misconduct and Gross design, evil or to show an intentional and Misconduct. disregard substantial in- Unemployment compensation structures employee’s terests or of the duties and jurisdictions utilized in provide guid- obligations employer.’ to his regarding ance the distinction between sim- (internal omitted); ple 95 N.E.2d at 216 application misconduct and citations particular that distinction to the factual see also Meulen v. Review Bd. Indiana given Div., Employment circumstances of termination matter. Sec. 527 N.E.2d procedures review of by (Ind.App.1988); Our utilized White v. Review Bd. of jurisdictions approximately Div., reveals that Employment Ind.App. Indiana Sec. twenty-two (1972). 64, 65 state statutes dis- 280 N.E.2d tinguish simple between misconduct and Kansas, gross In simply misconduct is de gross in determining periods misconduct of extreme, evincing fined as “conduct willful or disqualification. misconduct_” 44-706(b)(1) wanton K.S.A. Many statutory guidelines of these discuss (2000). provides The Kansas statute gross misconduct in of terms its character as duty misconduct is “a violation of a or obli a criminal violation of some For nature. gation reasonably owed the aas instance, gross the definition of Id; employment.” condition of see also Na in several states is couched terms of Gypsum Employment tional Co. v. State Sec. employee qualifies whether action of Review, Bd. 244 Kan. 772 P.2d of KBI, as criminal misconduct. In Inc. v. Re (1989). Department view Indiana Board Work of of Nebraska, Development, (Ind.App. specifi- 656 N.E.2d 842 In “misconduct” is not force 1995), example, statute, cally by the Indiana court exam- defined but it Michigan adopted Michigan Comp. 5. The Supp.1956, § court the definition of Laws 421.29. by Supreme misconduct utilized the Wisconsin Neubeck, Boynton Court Cab Co. v. 237 Wis. (1941). 296 N.W. Depart generally to include be- In Giles v. District Columbia been defined (1) Services, Employment havior which evidences wanton will- ment 758 A.2d 522 interests, employer’s disregard ful of the (D.C.App.2000), District of Columbia (3) (2) rules, violation of disre- deliberate Appeals analyzed § 46- Court of D.C.Code

gard of of behavior which the 111(b)(1) standards (1996), providing that term rightfully expect from the employer can gross shall under be “determined (4) negligence which mani- employee, or duly prescribed regulations.” A.2d at intent, wrongful culpability, evil de- fests 46-111(b). 524-25, § quoting D.C.Code sign, or and substantial disre- intentional according regula Giles court found that employer’s or of the gard of the interests amendments, interpreting tions DCMR obligations. employee’s duties and (1994), § gross misconduct includes such Porkers, 213 Neb. sabotage; unprovoked Stuart v. Omaha or acts as assault distinguishing threats; arson; theft; In N.W.2d attempted or theft simple misconduct and insubordination; between dishonesty; repeated disre conduct, Nebraska court noted as follows orders; gard of or reasonable intoxication Minden, City in Poore v. 237 Neb. impairment by an alcoholic the use of or (1991): ‘gross’ “The term is de- N.W.2d substance, beverage, in controlled or other fined Third New International Webster’s toxicant; property; willful destruction or 'b(l) Dictionary, Unabridged 1002 as repeated or a warn absences tardiness after (2): glaringly ... noticeable: FLAGRANT regulations ing. 758 A.2d at 525 n. 3. The “ OUT-AND-OUT, COMPLETE, UTTER, simple ‘an act or defined misconduct as UNMITIGATED, RANK.’” 464 N.W.2d omission an which constitutes a employee’s or obli breach of the duties statutory Maryland, scheme is di gations employer, breach misconduct, aggravated vided into miscon contract,.or employment agreement or duct, statutory misconduct. The adversely affects material inter provided by definition of misconduct is includ[ing] ... est those acts where the se statute, Maryland Employment Labor & verity, degree mitigating circum or other 8-1002, employ § as follows: “conduct of an support finding “gross stances do not ’ ” (i) disregard that is: deliberate and willful ee 525, quoting misconduct.” 758 A.2d at employing that an of standards of behavior Examples pro DCMR 312. of misconduct rightfully expects unit and that shows regulations a minor vided include: employing indifference to the interests rules; violation of an unautho (ii) unit; repeated employ violations of pei’sonal during rized activities business regular prove ment rules that and wanton hours; absences or tardiness whose number ” obligations.... disregard employee’s proximity time does rise the level reviewing Maryland courts have rec misconduct; inappropriate use ognized that are no hard and fast “[t]here profane language. or abusive 758 A.2d at determining particular in rules for what the 525 n. 4. employment context constitutes ‘deliberate D. of Resolution the Misconduct/Gross ” Department and willful misconduct.’ La of Distinction Misconduct bor, Licensing Regulation and v. Muddi man, Md.App. 708 A.2d Misconduct Gross (1998). Such a determination will be altered specific guid Our eases, examination impropriety of with and the individual statute, Virginia principles ance of the West the conduct under examination must be cases, prior Virginia in enumerated West and judged particular employment within the jurisdictions procedures employed in other Employment context in which it occurs. Sec. LeCates, which also maintain a distinction between Bd. Md. v. 218 Md. 145 A.2d of simple gross misconduct and misconduct re types of conduct Certain gross typically that misconduct is egregious they will veals de be so that will be consid simple specific egregious fined as a more form of ered misconduct even where no rule gross prohibits conduct. Id. misconduct. The definitions of miscon- such generally activity § or Virginia duct criminal West reference Code 21A-6-3 is utilized as particularized ramifications of the act of sim- for of basis denial all com- ple prime example, pensation quali- misconduct. As the in benefits the absence of a prior Virginia supports fying the warning, West statute conclusion written is that, required to purposes determining of furnish that in for of the level evidence the act question equal to a disqualification unemployment compensa- for rises level of seriousness exceeding to or Virginia specifically that of tion under the other benefits West Code items, 21A-6-3, § enumerated and an of of mat- act misconduct shall be resolution brought ters under this gross subdivision must be considered misconduct where un- Moreover, (1) analyzed case-by-case on a basis. derlying misconduct of consists willful placement (2) particular of a in category act employer’s property; destruction of the gross of misconduct should be carefully re- upon assault or another em- and not (3) viewed should be undertaken circumstances; unless ployee in certain certain it is clear that such gross acts constitute of instances use of alcohol or controlled sub- legislature. misconduct as defined Virginia stances as delineated West Code 21A-6-3; (4) arson, theft, fraud, § larceny, Simple Misconduct embezzlement in connection with (5) ment; gross other Michigan misconduct While the definition of miscon- which shall include but not be consistently limited duct upon relied this Court employee has initially instances where received employed jurisdiction in a prior written that of notice his continued acts simple differentiated between miscon- may misconduct, misconduct7 result gross termination duct and components employment. § definition, W. See Va.Code 21A-6-3. of that including willful wan- To implemented disregard interests, the extent that UB Services ton employer’s an de- standards, definition for misconduct wrongful inconsistent liberate violation with it foregoing, expressly intent, appear overruled. widely accepted to be as the defining components of employee misconduct. Thus, legislar we believe that As illustrated above in our examination provisions regarding gross ture’s misconduct jurisdictions, such definition for mis- can categories: be divided into three distinct accepted conduct is even in uti- states which (1) specifically those enumerated acts which separate lize a definition for the elevated (2) misconduct; shall be considered degree of designated as may interpreted items which be “other misconduct. misconduct;” acts misconduct for employee prior which the has Virginia received We conclude that the West warning written simple continued violation will construct mandates Except Kirk; result termination. includes those elements identified Federojf, Courtney; Foster, where an Beery; received writ warning, phrase, upon ten Metropolitan Life, “other mis as based the Michi conduct,” Virginia Thus, § gan pur West Code 21A-6-3 definition of for misconduct. legislature’s provide poses determining evidences intent disqualifica level some element discretion in the Board and tion unemployment compensation for benefits courts, reviewing upon peculiar 21A-6-3, based Virginia simple under West Code If, example, facts of each evincing ease. ña misconduct is conduct such willful employer’s tee of the an disregard business rendered and wanton of an inter particularly act of dangerous, is in ests as found violations or deliberate or shocking, egregious, disregard the misconduct could of of standards behavior which the legitimately gross right expect to elevated has of the to his em for purposes determining unemployment of ployee, or negligence of carelessness or compensation eligibility. degree the Where catch-all such as to manifest recurrence provision gross of equal culpability, wrongful “other misconduct” in intent or evil de- "misconduct,” here, Kirk, 524, 7. The term as used refers Court W.Va. at at specifically adopted by to the definition this clearly by excluding not mized eases intended to an intentional substan- sign, or show exception denying unemploy- disregard employer’s of interests or to be within the the tial obligations compensation to at employee’s duties and ment benefits.” W.Va. of the employer. at 44. 355 S.E.2d his consequently Mr. We conclude that to the Present Case Application E. engaged fail Dailey simple misconduct unemploy of resolving In issues had ing that his driver’s license to indicate this consis compensation, Court has ment by permitting suspended and his em been unemployment com tently recognized that ployer continue to that he main to believe pensation be construed statutes hiring his a valid driver’s license from tained Any liberally in favor of the claimant. 1,May date date of termination favor a con is be resolved in of doubt Appellant’s conduct of June 2000. The disquali not which does work struction clearly willful and wanton disre constituted Valley, 202 W.Va. at fication. Ohio gard the and thus of interests Moreover, Peery at 429. the 505 S.E.2d utilized the definition of misconduct satisfies specifically advised unless Court jurisdictions. this Court and other “clearly is be within case intended to not, however, Appellant’s con conduct does denying unemployment compen exception gross term is con stitute misconduct as that benefits,” not sation it should be so templated by legislature. This Court placed. 177 355 S.E.2d at altering unyieldingly from ten- refrained Thus, clearly unless an act falls legislative by appending or of a enactment misconduct, gross purview of within the additional to a statute. Where elements legislature, as it should envisioned unambiguous, incorporation of statute denying as un utilized a basis for not be words, terms, provisions additional is not compensation benefits. v. the domain of the courts. Mallamo Town Rivesville, 477 S.E.2d case, present while the em (1996); Peyton of Lewisburg, City Council liability ployer exposure that its contends (1989); 387 S.E.2d State Appellant’s as actions creates a result Elder, finding a foundation for miscon duct, Appellant’s we not conclude that the do concealing suspension act his license clear upon foregoing, we reverse the Based ly legislature’s falls within the enumeration determination of Board and lower constituting of acts misconduct. The proceedings court and remand for further deception Appellant’s did not involve destruc opinion. consistent with this assault, property, tion of alcohol or controlled Reversed and Remanded. arson, theft, fraud, substances, larceny, em bezzlement, Ap or an instance in which the dissenting opinion Justice DAVIS files pellant had received written notice that joined by Justice MAYNARD. may acts result termination his continued Chief Justice STARCHER concurs and employment. 21A-6-3. See W. Va.Code concurring opinion. files a only legislatively meth authorized elevating od the act to level of DAVIS, J., dissenting: misconduct would be inclusion within the (Filed 2003) Nov. phrase, catchall “other misconduct.” record, majori- upon by the our as well Under the decision reached Based review the case, ty opinion every in the potential as ramifications of the actual Virginia upon provide must unem- Appellant’s actions the business State West employ- employer, ployment compensation we benefits do believe obtaining clearly Appellant’s actions ees who are terminated constituted through Peery succinctly misrepresentation As Court fraudulent misconduct. above, on-the-job penal engaging in criminal conduct quoted “[t]he stated and we majori- I provision being find the the should mini- to terminated. character of be

429 Benavides, 228, 232, ty every employer to Gerver opinion to be offensive v. 207 W.Va. 530 (1999) Therefore, 701, Virginia. S.E.2d 705 (quoting Stanley and of West for citizen v. Co., below, 72, 76, provided I Sewell Coal 169 W.Va. S.E.2d 285 the reasons dissent.1 (1981)). 679, Hager Hager, 683 See also v. — 29688, 6, Slip -, op. No. Va.W. I. - -, -, 2001 S.E.2d WL 1525190 Dailey Employment Mr. Obtained (Nov. 2001) 29, (holding that “in appellee Through Fraudulent failing testify fully completely to and and Misrepresentation master, honestly family the law before effect, fraud.”); falsely majority opinion recognized that acted and The un- committed 21A-6-3(2) Leavitt, 127, 95, Kessel v. 204 § 511 person der W. Va.Code dis- (1998) 720, (“ S.E.2d 752 ‘A ... party’s willful charged employment from mis- nondisclosure of a that material fact he conduct is entitled knows party may is unknown to the other compensation. majority opinion The also ” practice evince an intent to fraud.’ actual acknowledged that under W. Va.Code Snead, 324, 21A-6-3(2) (quoting Van Deusen v. 247 Va. § fraud constitutes 328, 207, (1994))); S.E.2d Amoldt v. major legal conduct. of One the flaws Oil, Inc., 404, 394, Ashland 186 W.Va. majority opinion inexplicable its is fail- (“ (1991) 795, 805 S.E.2d ‘Fraud means an analyze ure to the issue fraudulent mis- deceit, misrepresentation, intentional or con- representation that existed this case. cealment of material known fact to the defen- recognized It concept has been that dant causing and made with the intention of quite fraud is broad: ” injury plaintiff.’ Ky.Rev. (quoting to the generic Fraud as ‘[a] is sometimes defined 411.184(l)(b))); §Ann. v. Stat. Miller Hunt- term, embracing all multifarious means Co., ington 320, Bridge & Ohio 123 W.Va. devise, ingenuity which human can and 335, (1941) (“ ‘[Fjraud 687, by which are resorted to one individual to intentional includes eases and success- get advantage by sug- over another false deception, any cunning, ful or truth, gestions by suppression or and circumvent, artifice to cheat or an- deceive trick, surprise, ” cunning includes all dissem- Jur., (quoting other.’ 23 Am. Fraud & De- bling, way by unfair which another (1939))); 4,§ King, ceit at 756 Holt v. is cheated.’ (1903) (“The 441, 447, S.E. State ex rel. Medical Vir Assurance West suppression equivalent truth is Recht, ginia, Inc. v. falsehood, No. utterance of both (2003) (Davis, J., frauds.”); Ward, Currence concurring) (quoting Volcanic (Dent, J., Gardens concur- S.E. Paxson, Mgmt. (“ acts, Co. 847 S.W.2d 347 ring) ‘Fraud ... includes all omis- (Tex.Ct.App.1993)). sions, This Court held which involve a concealments “[ajctual intentional, that fraud is and con legal duty, equitable breach of or or trusty deception sists of misrepre justly injurious an intentional reposed, or are confidence another, part sentation to another to with advantage ‘induce an undue ” property legal right, Story, Eq. or to (quoting surrender some taken of another.’ Jur. ” 187)). Moreover, accomplishes designed.’ Albright and which the end as Justice re- dispositive by Gary Dailey The issue raised in this case raised Mr. was that the caus- conduct Dailey ing that he fired was was because union him fired was not misconduct. Therefore, majority opinion summarily disposed of activities. he should not have been unemployment compensation appeal denied benefits. true basis for the opinion. in footnote unsupportable vaguely argu- majority goes As an briefed then on to transform ment, Dailey Dailey’s argument Mr. that if he Mr. into the contended even was meritless fallback fired, validly agree causing dispositive him be fired in the While I with conduct issue case. Dailey’s activity majority was not achieve that Mr. union ar- misconduct. order to result, majority gument opinion argu- disagree unsupportable, its I with the inverted was is, Dailey. majority majority’s Dailey’s ments raised Mr. That Mr. resolution of meritless opinion disingenu- causing written in manner to be contention that him ously gives impression primary fired issue was not misconduct. is The record public roads.” Young, sengers on Ernst & in eently “ Cordial observed during Dailey stated lied when he to en- clear. Mr. another person induces one ‘[w]here a valid driver’s job that he had representations, interview by false into a contract ter Dailey know, Mr. on employer ... hired and The to license. is in a situation which he untrue, and, license.2 had a valid driver’s to basis that he be know the statements does Dailey, hiring Mr. they Subsequent to be fraudu- are held consequently, ” 119, 130, that Mr. occasions requested 483 S.E.2d on several 199 W.Va. er lent!.]’ (1996) photo- Syl. pt. Horton driver’s license (quoting Dailey produce his (1927)). by insur- required 139 S.E. copying, as Tyree, 104 W.Va. as Dailey repeatedly offered excuses Mr. er. circuit both the proceeding, instant In the produce his driver’s license why did not he judge found law administrative and the court eventually employer requested. The when that he had Dailey “misrepresented Mr. that Depart- from the an official record obtained license,” “mis- and that this a valid [driver’s] indicated that of Motor Vehicles gross misconduct.” constitutes representation had been sus- Dailey’s license driver’s Mr. perform an majority opinion failed to The was hired. and he pended “misrepre- after analysis whether the before to determine in of fraud order rose to the level sentation” Third, damaged sev- was It gross misconduct. finding support Dailey’s fraudulent ways of Mr. because eral majority such an omitted obvious that the is employer was misrepresentations. The to do so would defeat analysis because with hir- expenses associated to incur forced majority’s desired result. it to fill the ing because had a new driver noncriminal essential elements The Dailey Mr. was fired. The vacancy when left “(1) that act claimed to are: fraud expenses in hav- legal employer also incurred act of the defendant was the fraudulent Dailey obtaining against Mr. ing to defend (2) him; and by it was material induced compensation for fraudulent false; upon it and was plaintiff relied Finally, Dailey’s Mr. fraudulent conduct. relying justified the circumstances under employer, by jeopardizing “was (3) it; damaged be- that he was upon employer’s insurance voiding the potentially Syl. pt. part, upon it.” cause he relied involving of an accident coverage in the case Lint, 272, 280 S.E.2d Lengyel v. 167 W.Va. [him].” support a facts in this case misrepresentation to me that the It is clear finding of fraud. and the adminis- circuit court found First, this ease was act in the fraudulent judge an inadvertent or law was not trative of the sta- Dailey’s representation false Mr. misrepresentation. inconsequential court The circuit of his driver’s license. tus em- fraud on the representation constituted point as follows: summarized such, misrepresentation was ployer. As that when he employer] testified [The majority In order for the gross misconduct. Dailey] anticipation [Mr. interviewed otherwise, it had to total- to conclude opinion n hiring him, Dailey] if [Mr. he asked posture of this issue ly ignore the true opera- any problems with [his] there were appear not to light that made it cast in a Dailey] em- [the told [Mr. tor’s license. component of W. Va. fraud under the come ployer] were none. there 21A-6-3(2). It indeed a sad mo- Code jurisprudence when Virginia Second, Mr. ment West status of the issue of the wrongdoers to blatantly permits our law because Dailey’s was material driver’s license penal- fraudulent conduct seeking profit their “re- employment position he by making pay fraud them victims of izes the gasoline trucks used quired him to drive Services, Inc. v. wrongdoers. See UB required airport [and] ... airplanes fill at the 365, 368, Gatson, pick up airport property to him off to drive (“[individuals should benefit pickup pas- gasoline ] bulk deliver! stating reasonably the truth that he was Dailey having previously believed Mr. 2. As a result of license. had a valid driver’s he said that he employer, when employed been

431 misdeeds[.]”), meanor, by depending upon from their own overruled the value of the majority opinion property unlawfully in this case. obtained. The essential pretense

elements the crime of false are: II. (1) (2) defraud; fraud; the intent to actual (3)the pretense false was used to accom- Majority Opinion The Has Mr. Rewarded (4) plish objective; and the fraud was Dailey for Criminal Conduct by accomplished pre- means of the false striking One of in the the most omissions ie., tense, pretense must false be in majority opinion discus- involves the lack of cause, degree some if not the control- concerning sion the criminal conduct cause, ling which induced the owner to Dailey’s misrep- flowed from Mr. fraudulent part property. with his obtaining employment. resentation in Moore, 97, 108, v. 273 State W.Va. S.E.2d majority such discussion in- omitted because (citation omitted). (1980) cluding it would have under- weakened and sought by majority. mined the outcome case, sought In Dailey this Mr. to obtain a opportunity only I will highlight take the to job, benefits, employment wages and all of two of criminal the obvious offenses commit- property employer, by were the by Dailey. ted Mr. fraudulently misrepresenting the status of misrepresentation his license. driver’s This (1) Driving a without license. The record directly give caused to Mr. dispute. Dailey this case is not Mr. did Dailey job, wages a bene- not have a valid driver’s license he when Zain, fits. See State 207 W.Va. equal- hired employer. The record is (1999) (upholding S.E.2d 748 an indictment ly showing that during clear brief § charged under W. Va.Code 61-3-24 that a period employment, operat- Dailey his Mr. obtaining with wages defendant ed the motor without a vehicle fraudulently performing benefits while opinion valid majority driver’s license. The work). totally disregarded indicating the evidence Dailey Mr. operated motor vehicle without

a valid driver’s license. III. 17B-2-l(a) § Pursuant to W. Va.Code Majority Opinion Stare “Stood (2000) 2000) (Repl. person may Vol. ... “[n]o Decisis on its Ear”3 any upon drive motor vehicle a street or sought majority To the result reach highway in ... person this state unless the necessary it was the recent deci- overrule license!)]” Further, has a valid un- driver’s Services, Gatson, sion UB Inc. 17B-2-l(f), § der W. Va.Code it a misde- sylla- S.E.2d 365 person meanor operate offense for point Dailey Corp., bus v. Bechtel motor vehicle without a Al- driver’s license. (1974), this S.E.2d 169 Court though Dailey Mb-. violated W. Va.Code held: 17B-2-l(a) § by knowingly driving his em- license, ployer’s majori- appellate without a An court should not overrule a vehicle ty previous recently this criminal with decision rendered with- rewarded compensation changing benefits. out evidence conditions seri- judicial interpretation ous error suffi- (2) money Obtaining pretense. false compel cient to deviation from the basic (1994) 61-3-24(a)(l) Under W. Va.Code decisis, policy stare of the doctrine of 2000) (Repl. it is a criminal for “a Vol. offense promote certainty, stability, which is to person by any obtain[] from [to] another uniformity in the law. defraud, pretense ... with false intent to money, goods property[.]” Cleckley pointed of- or other This As out Banker v. Justice Banker, punishable felony fense is as a or misde- 546 n. S.E.2d J., (Starcher, Props., Corp., dissenting). 3. A & M Inc. v. S. Norfolk 189, 197, (1996), provide In an some structure decisis is the effort “[s]tare 476 n. 13 guidance phrase “any gross mis- to the by precedent.” policy court stand conduct,” opinion prior deci- looked “[ajs rule, is, general principle That following: sion and stated Court ... directs to adhere to the stare us decisis previously miscon- We have defined holdings County cases[.]” of our of duct as: Allegheny v. American Civil Liberties Un- evincing and ... conduct such willful ion, Chapter, 492 Pittsburgh U.S. Greater disregard employer’s an inter- wanton of 3086, 3141, 573, 668, 106 L.Ed.2d 109 S.Ct. as is found in deliberate violations ests J., (1989) (Kennedy, concurring dis- 472 and disregard behavior or standards or Moreover, senting). decisis rests of “[s]tare to right the has the which by upon principle that law important the the or expect employee, his in careless- ‘fixed, of governed which should be people degree of such or negligence or ness known,’ subject definite, and not to fre- and equal culpabil- as to manifest recurrence quent compel- in absence of modification the ity, wrongful design, or evil or to intent ling Soulsby, Bradshaw v. reasons.” an dis- show intentional substantial 690, 681, (2001) 682, S.E.2d regard employer’s or of interests J., (Maynard, dissenting) (quoting Booth employee’s obligations to duties the Sims, n. 193 W.Va. S.E.2d employer. the other hand mere his On (1995)). majority 194 n. 14 The decision conduct, inefficiency, unsatisfactory fail- reprehensible. In to overrule UB Services is good performance in as of ure the result fact, majority opinion author of “[t]he the inability incapacity, or or inadvertencies ” has, effect, in ‘stood stare decisis on its ear.’ ordinary in negligence instanc- isolated Props., Corp., A Inc. v. & M S. Norfolk es, good judgment in faith errors (1998) S.E.2d discretion are not to be “miscon- deemed (Starcher, J., dissenting). meaning of duct” within the the statute. Cole, 520, 524, necessary background information is Kirk 169 W.Va. Some added) (emphasis reasoning to behind the ma- understand Michigan (quoting, Employ- Carter v. jority’s to UB decision overrule Services. Commission, Security 364 Mich. ment unemploy- involved of UB Services the award (1961)). 538, 111 N.W.2d 817 compensation employee to an was who assaulting after while Services, terminated co-worker at UB off-duty. employer argued The that the as- in In (emphasis original).4 of this view employee gross by considerations, sault constituted mis- definition and other the deci- off-duty and that he should be conduct denied unem- sion in found that the UB Services ployment compensation. gross In to order address conduct was misconduct that warrant- issue, unemployment compensation. ed a of this the Court in Services set out denial UB defining gross various of principles law mis- “any gross definition for other miscon- opinion conduct. The in UB Services cited to recognized was in duct” that UB Services gross examples misconduct found in by majority expla- was without overruled 21A-6-3(2). The conduct W. Va.Code easy why It nation. is to understand any did not fit under of the majority All chose overrule UB Services. examples. Consequently, enumerated conclusively in case dem- the evidence this provision opinion Dailey’s lying catch-all looked that onstrated Mr. provided gross operating “or statute to obtain his em- ployer’s li- motor without driver’s misconduct.”. vehicle important It that the that did not make between miscon- note definition a distinction taken from Kirk UB Services duct and misconduct. The decision UB actually given simple was the context language quoted in Kirk Services realized that the actually is, the in Kirk con- conduct. That decision rose to level of general- cerned with a definition for misconduct ly, correctly characterized the definition therefore quoted misconduct. The definition as that of misconduct. Michigan, jurisdiction, Kirk was taken from a cense, My constituted “willful and wanton dissenting colleagues disre- apparently also gard [the] interests as is found failed to examine the facts of the Court’s area, ... Services, in deliberate violations of standards ... earlier case in this UB Inc. v. right expect Gatson, 532 S.E.2d 365 employee.” majority could not have opinion, As the author of that I can reached its desired result the instant ease in retrospect absolutely state the case is opinion had it allowed the UB Services example classic making bad facts bad stand. majority law—an error that opinion cor- Services, rects. In UB the Court was faced foregoing, view of the I I dissent. am who, with an employee after hours and off authorized to state that Justice MAYNARD (in company’s premises home), his own joins dissenting opinion. me confronted co-worker with whom he had long-term had a romantic relationship. The STARCHER, C.J., concurring. employee savagely co-worker, beat the (Filed 2003) breaking pelvis hip, Dec. her and hospitalizing her days for five causing and her to miss work separately I challenge write allega- for six months. by my dissenting colleagues tions made in separate opinion. then’ circumstances, In these no in right their mind would allow the begin, my dissenting To colleagues incor- workplace return to the he was fired. —hence rectly that “dispositive assert issue raised question existed as to whether the em- by Gary in this Dailey case was that he was ployee’s conduct —after hours and off the They fired because of union go activities.” premises “gross be considered —could majority on to being “disingen- accuse the conduct” in the course of so as ],” transforming uous[ a “meritless fallback to completely deny employee unemploy- argument dispositive into the in issue ment benefits. This Court examined the law “summarily dispos[ing] case” and of the true light facts, in of these horrific and unani- appeal” basis for the in a footnote. See mously any stretched the definition “or n.l, W.Va. at 429 589 S.E.2d at 807 n. 1 other misconduct” to include that of (Davis, J., dissenting). off-duty, off-premises employee, fired quick A Dailey’s view of Mr. appeal brief thereby denying unemployment benefits. my reveals that dissenting colleagues appar- Extreme facts in resulted an extreme rule of ently Dailey’s failed to appeal read Mr. brief law. making before their appel- assertions. The majority opinion in assignment lant’s the instant sole of error is that case misconduct, record “is void of corrects the extreme nature of the Court’s otherwise, opinion Services, in disqualify which would UB and for [Mr. Dai- the first time ley] unemployment gives argu- the Board of and benefits.” The Review courts de- assignment guidance ment that meaning follows this tailed as to error of “miscon- entirely question “gross focuses on duct” misconduct.” the defini- As the au- misconduct, Services, degree tion of thor of miscon- of UB I am therefore offended required deny duct by my a claimant dissenting colleagues’ position that the Only opening benefits. in the decision to “reprehensi- overrule the ease is Dailey statement of facts majority detail, does Mr. discuss opinion, superb ble.” The in activity, only union in the statement of sets forth the definitions of the two terms states, facts does he allude that this was his used and uses law of firing; er’s true motivation for his the re- those other states to craft definitions for use mainder of the brief discusses his lack of in Virginia. expansive West Because of the misconduct, and his contention that “gross nature of the definition of misconduct” Board of Services, Review erred as a overruling matter law UB the case was the denying him on only way benefits the basis of miscon- properly refine discuss our duct. law in this area. majority’s well-re- with the

I concur

searched, opinion, and am dis- well-reasoned wholly-unnecessary vitriol

appointed colleagues attacking my dissenting My dissenting col- reasoning. research and J., Albright, part, clearly disappointed with the re- dissented concurred leagues are part, opinion. and filed case, chastising mit but “sound-bites” adopting arguments that majority for not parties, or ac- weren’t even asserted engaging in criminal con-

cusing party of

duct, simply inappropriate. Virginia ex rel. of West

STATE Petitioner, WYANT, Roger BROTHERTON, Clerk,

Keith Court of Jackson

Circuit

County, Respondent. Virginia ex rel. Lorenzo of West

State Valentine, Petitioner,

D. Frazier, Judge, R.

The Honorable John County, Mercer

Circuit Court of

Respondent.

No. 30907. Appeals

Supreme Court of Virginia.

West 8,Oct.

Submitted 10, 2003.

Decided Nov.

Concurring Dissenting Opinion Albright Dec.

Justice

Case Details

Case Name: Dailey v. Board of Review, West Virginia Bureau of Employment Programs

Court Name: West Virginia Supreme Court

Date Published: Dec 12, 2003

Citation: 589 S.E.2d 797

Docket Number: 30730

Court Abbreviation: W. Va.