Federoff v. Rutledge
332 S.E.2d 855
W. Va.
1985
Check Treatment

*1 little or no incarceration Where time is propensity fense to his demonstrated involved, rehabilitative treatment for drink If alco- and drive. has not hol abuse should be one of the successfully completed conditions of rehabilitative treat- every conviction, the sentence misdemeanor or subsequent felo- ment his ny in which prosecuting conviction alcohol abuse a attorney should initiate invol- contributing untary factor. See ex proceedings State rel. commitment for exami- Simpkins Harvey, 305 nation and appropriate determination of S.E.2d 275-76 facility. treatment in a mental health invalidity Due to the

Additionally, independent code, 1977 DUI conviction for pur- criminal enhancement mental health laws of poses, provide the third this State offense conviction herein is treatment of those Further, reversed. pose danger pro- addicted to alcohol State should who a ceed with themselves and institution of mental health question, others. Without hear- ings many principles consistent repeat DUI with offenders are enunciat- addicted opinion. ed pose danger alcoholics who a clear to them threatening selves and others—a menace to Reversed. community. The State’s mental health provide process laws adjudication and which,

rehabilitation for many alcoholics

cases, keep will the chronic DUI offender

off the road with more success than sole

emphasis prosecution. on criminal Irre spective of the prosecu results criminal 332 S.E.2d 855 tion, State, protect community Sidney D. FEDEROFF threatening posed from the menace offender, repeat duty proceed has a civil RUTLEDGE, Phyllis ly require treatment. In J. Clerk of the Cir instances County; probable where there is cuit Court of Kanawha suspect cause to addiction, Virginia Depart of Review of West rehabilitative treatment Employment sought by should Security; ment county prosecutor be J.F. McClanahan, Chairman, by application as pro for the institution of El C.C. more, Jr., Elliott, Gregory ceedings involuntary and commitment to an E. as Commissioners; Virginia Depart appropriate mental facility. health West See Employment (1980 Security; ment Virginia seq. Code 27-5-1 et and § Company, Employ Replacement Supp.1984). Vol. & Consolidation Coal er. case, In the instant the record

clearly probable reveals cause No. to believe 16332. suffers from alcohol ad Supreme of Appeals Court Virginia diction as defined West Code Virginia. (Supp.1984). 27-1-11 See also West Vir § ginia 27-1-12(4) (Supp. July 10, Code & 27-1-16 1985. §§ 1984). Further, history use Dissenting Opinion July prob automobile while inebriated manifests poses able cause to believe substantial of harm

threat to himself and Ac others.5

cordingly, duty State must act its providing mandating appropriate re appellant. appel

habilitation for the capacity

lant’s diminished no mental de- note, however, 5. We that when addiction is existence the likelihood to cause serious involuntary proceed- (Supp. found under commitment harm. West 27-5-2 1984). ings presumption statutory is a there

coming smelling work drunk of alco- hol would not be tolerated and would sub- ject him discharge. involving

An incident oc- *3 approximately curred one week after he began his brief tenure at the Rowland Upon mine. to reporting work one morn- ing, his supervisor immediate detected the of smell alcohol on During his breath. the evidentiary hearing before the Board of Review, supervisor this that upon testified discovery he the appellant took to his office and him it policy told “that was the II, Winfrey, Princeton, William S. for company our no one would be —that appellant. allowed to work under the influence or with alcohol on their The appel- breath.” Jackson, Kelly, O’Farrell, Holt & apparently lant drinking anything denied Charleston, Surber, Attn: Charles M. Jack prior but, morning according work that Friedman, Charleston, appellee. testimony, acknowledged his own that problem he had a with alcohol and had done McGRAW, Justice: drinking previous some night. After appeal This is an from a final order of colloquy office, supervisor’s in the the Circuit Court of Kanawha County appellant was sent back finish his work which affirmed the decision of the Board of shift. Virginia Department Review the West leading The final incident the appel- Employment Security disqualifying the lant’s occurred during period appellant, Sidney Federoff, receiving assigned he was to work the midnight unemployment compensation. appel- The 8, 1982, shift. February On rather than permanently disqualified lant was based reporting for work at the scheduled time of upon a determination that he was dis- a.m., appellant 12:01 up showed be- charged from his employment morning. tween 4:30 Upon and 5:30 that misconduct. learning tardiness, of his substantial appellant supervisor, was confronted I later, by superintendent. the mine superintendent The' relevant mine facts derived from later testified at the record, including hearing Board Review he transcript could testi- appellant smell alcohol on the mony taken an from a before Administrative Law appellant’s tance five or six Judge for feet. The the Board of Review of the West supervisor immediate also testified that he Virginia Department Employment Secur- could smell alcohol on the ity, following indicate the chain of events. breath, eyes appeared and that his ex- appellant was employed by appel- tremely appellant red. The discharged was lee, Consolidation Company, Coal from Au- morning. gust 1971 until his dismissal Febru- 8,1982. ary appellant, In June of incident, explanation In his own of this working appellee’s then at the Maitland evening testified that on the mine, was interviewed a maintenance before this a couple shift had of drinks vacancy foreman company’s at the Row- p.m. at home around 7:00 and then over- given land mine. The slept lying after nap down to take a before position. Beforehand, however, getting vacant go ready to work. He further that, superintendent, Rowland added mine who had

been previously informed that the I never went to work intoxicated—I drinking problems, had and absenteeism you know that smell I am could it. the appellant warned that absenteeism I night. alcoholic and was a Syllabus point sup- I As stated working the hoot owl I was When Rutledge, Kisamore I wasn’t use to eyes were red. my pose (1981), by the “Findings of fact S.E.2d Probably look bad. The did shift. Virginia De of Review the West exactly is just terminated —it night I was Security, in an partment Employment I told it. like case, should unemployment compensation discharge, Subsequent to his findings are unless such aside not be set compensa- applied for lant however, plainly wrong wrong; plainly Virginia Department the West tion with conclusions of apply doctrine does appellee-em- Security. The Employment See also of Review.” law the Board Depart- a statement with ployer filed Rutledge, 174 W.Va. Syl. pt. Butler *4 that, Sidney “Mr. Feder- to effect ment the 1, (1985); Syl. Mi 752, pt. 118 329 S.E.2d in discharged reporting to work for off was 514, 328 174 W.Va. S.E.2d Rutledge, zell v. smell of alcohol that the such a condition Cole, 2, 174 (1985); pt. v. Syl. 514 Perfin Mr. Federoff was warned was evident. 1, (1985); Syl. 417, pt. 327 S.E.2d 396 W.Va. reporting work against to occasions several 730, Cole, 172 W.Va. S.E.2d Lough v. Deputy Commis- in a condition.” The such Cole, 171 W.Va. Farmer rendered Department the who sioner for (1983). 300 S.E.2d this claim found that the the decision on appel the first address whether We reporting discharged “for appellant was discharge caused his lant’s actions which condition,” thereby in an intoxicated work subject he is support a determination that him from receiv- permanently disqualifying disqualification unemploy for a six-week compensation due any unemployment ing being compensation due to “dis ment gross misconduct. for charged from his most recent work de- appealed Deputy’s The As in is true [ordinary] misconduct.” evidentiary hearing an was held. cision and many jurisdictions, the term “miscon other Judge presiding Administrative Law The duct” is defined gross for that the concluded This compensation of this State. statutes subse- The Board of Review misconduct. therefore, Court, previously present when quently adopted findings the ALJ’s and meaning of the ed with the issue of appealed then affirmed. term, adopted following judicially County, and of Kanawha the Circuit Court definition: evolved 27, 1984, the court April order dated evincing and wanton conduct such willful Re- of the Board of affirmed decision employer's an interests as is disregard of view. or dis- found deliberate violations which regard of standards of behavior II right expect of employer has the (Supp. Virginia 21A-6-3 Code negli- § employee, or in carelessness or 1984), where- specifies the various reasons or as to gence degree of such recurrence individual, eligible, may be by an otherwise wrongful equal culpability, in- manifest wholly partially or denied or an inten- design, tent evil to show or case, compensation. In this the relevant disregard and substantial tional (2), is portion of the statute subsection employee’s or employer’s interests of the discharges predicated pertains obligations which employer. and to his duties provision employee inefficiency, misconduct. This un- hand mere On the other conduct, for disqualification good per- satisfactory mandates a six-week failure inability if it unemployment compensation benefits or formance as the result ordinary incapacity, the claimant was determined inadvertencies misconduct, instances, per- good charged ordinary and in isolated negligence are judgment it determined or discretion disqualification if faith errors manent “misconduct” within discharge falls within not to be deemed that the reason for of the Kirk v. sphere meaning statute. statutorily designated Cole, S.E.2d W.Va. “gross” misconduct. Cooper Rutledge, see also 169 discharged ordinary misconduct and thereby subject 286 S.E.2d to a six-week disqualifica- 922-23 tion from the receipt of benefits. question, Without of alcohol mining of coal “don’t mix.” It Ill then, employer may follows that an choose noted, previously As to discharge employee upon an less than was permanently disqualified from receiv substantial evidence of actual intoxication. ing benefits due to the determination that testimony employer’s witnesses, his discharge gross was due to misconduct. as admissions, well as the own The relevant portion of subsection clearly support finding (Supp.1984) Board’s 21A-6-3 permanent disqualification mandates appellant reported for: to work with the smell reporting to of alcohol on work his breath. The intoxicated condi Board’s find- tion, or being intoxicated at ings while work of fact in this previ- case indicate that misconduct_ any ... or gross other ous oral warnings given to the Provided, purpose of this concerning lant problem. Particularly subdivision “any the words other *5 light in of the appellant fact that the was include, misconduct” shall but not be lim- foreman, employed as a this continued be- to, any ited act or acts of misconduct havior supports a conclusion that he acted where the individual has prior received in disregard substantial employer’s of his warning written that termination of em- interests. The smell of intoxicants on the ployment may from result such act or appellant, for example, could lead miners acts. working under him drinking to believe that Neither the nor ALJ the Board Re- job on the was tolerated. view, adopted which findings, the AU’s The appellant’s defense he that did not indicated specific statutory the basis for report to work or intoxicated drink on the their gross conclusion that misconduct was job is no charge defense to the cause for termination of employment in this case. ignored previous finding appellant that the warnings oral not to re- discharged “was allegedly being port intoxi- to work such an odoriferous condi- job cated on having the smell of Being employed tion. position in a with alcohol on his breath after previously being duties, supervisory such as the implicates warned” different bases under case, being instant position in a provision. misconduct where one is employer’s contact with the The record discloses that super- the mine customers, particularly compels such a de- only intendent testified to the smell of alco- See, Brown, termination. e.g., Green v. hol. The other witness for employer, 136 So.2d 147 (La.Ct.App.1961); Doyle v. appellant’s supervisor, only added Catherwood, 27 A.D.2d 278 N.Y.S.2d eyes”, observation “red might which (1967); Drayton Commonwealth, have resulted from either consumption Pa.Commw. 444 A.2d 185 Un- working alcohol or the “hoot owl” shift. employment Compensation Board Re- Upon inquiry by the ALJ as to other indica- Walto, view v. 21 Pa.Commw. intoxicated, tions that was A.2d 336 Klink v. Unemployment supervisor testified that Compensation Review, 5 Pa. speech appeared walk and normal. Within Commw. 289 A.2d 494 Accord- context of compensation ingly, we hold that under West proceedings, other courts have concluded 21A-6-3(2) (Supp.1984), reporting that evidence of “drinker’s breath” alone smelling to work beverages, of alcoholic support finding insufficient to of intoxi- previously after being admonished not to instance, in Kentucky cation. For Haste v. so, do supports a determination that an Unemployment Commission, Insurance unemployment compensation claimant (Ky.App.1984), ruling was 673 S.W.2d 740 after reported to work intoxi- test of a blood alcohol results cated.1 incompe- the claimant

performed on for ad- the lack of foundation due to tent compensation In mission, cross-examina- opportunity for no of the legal the final determination cases showing of custo- tion, supported of the chain and no Board of Review must be in the record.2 evidence sample, the court held substantial blood dy of the support a does not evidence this case evidence, remaining that the claimant that, Virgi legal under West determination improper re- and made of alcohol smelled ap 21A-6-3(2) (Supp.1984),the nia Code § opposite employee marks to fellow in an intoxicated reported to work pellant sex, to find a misconduct insufficient was condition.3 under the discharge reporting to work specific Beyond the list of acts also Robert v. influence of alcohol. See gross misconduct West are labeled which Ross, 390 N.Y.S.2d 55 A.D.2d 21A-6-3(2) (Supp.1984), a Virginia Code § (In of on other (1977) disposed case disqualified may fully claimant be “whiskey observed that grounds, court receiving gross mis “any benefits for other evidence to is insufficient breath” alone include, shall but be conduct [which] finding support of misconduct to, any act or of misconduct limited acts Levine, intoxication); Llano prior the individual has received where (No N.Y.S.2d 808 A.D.2d warning that termination of em written support for conclusion that claimant may from such act or ployment result job or intoxicated guilty findings refer Although the Board’s acts.” showing with up for work odor based *6 previous had to the fact that being warned not alcohol on breath after of of ly “having been warned about smell so); Brown, v. 163 So.2d Thompson do to breath,” from apparent on his it is (Fact employer's (La.Ct.App.1964) that 868 warnings any such the record that upon manager could smell alcohol office Thus, of language the clear the stat oral. to held not establish claimant’s breath ute, “prior requires warn which written intoxicated). Consequently, we are he was ing” an act is elevat before of misconduct lim- to conclude that under the constrained misconduct, gross precluded the ed to warning in this case the Board relying prior ited evidence on the support its determination of conclusively provision determine to could not Review beyond by finding guilt a supported reasonable doubt is This conclusion further 1. Winfield, People fact that: v. alcohol-related offenses. See Ill.App.3d breath are 15 304 N.E.2d 693 State one smells on drinker’s What give Matchok, to each N.J.Super. the aromatic materials which 82 A.2d 444 v. odor; beverage one type of its characteristic necessary proof level of show beer, wine, recognize gin, may a or other compensation intoxication in beverage breath. odor—but not an alcohol necessary approach that cases does not rapidly disappears from the While alcohol offenses, convictions in alcohol-related criminal ingestion, the aromatic materials mouth after We note that but there must be clear evidence. foods, beverages, of other of the linger like those damages by in civil actions for caused tortious long relatively a and are detectable for recognized injury it has that “the mere been is, odor after time. The breath therefore, presents no odor of alcohol on one’s breath alcohol content of unrelated question of intoxication for the determination poor alco- blood and is a indicator Lee, jury.” v. 209 Va. Hill Gray, R. M.D. state of the individual. 4 holic (1969) (additional cases cited S.E.2d therein). M.D., L.L.B., Attorneys’ Gordy, & Textbook L. (3rd 1985). ed. Medicine 133.10 ¶ cast doubt The authors’ observations do not breath-testing validity devices used analogous somewhat to unem- 3.In a situation by agencies to calculate blood- law enforcement compensation proceedings ployment we held measure the ac- alcohol content. These devices Department of Motor Vehicle determina- (lung) present is in the alveolar tual alcohol that intoxication, prepon- supported if tion of 133.73(3). at air. See id. 133.73 to ¶¶ evidence, sufficient to warrant derance of li- context, of a driver’s the administrative revocation the odor of intoxi- In the criminal driving under the influence of alcohol. cense for unquestionably for a insufficient cants alone Division, gross legisla- Or.App. misconduct in this case.4 The 673 P.2d 1379 ture, writing, by requiring Commonwealth, notice obvi- but see Morrell ously (Pa.Commw.Ct.1984). interject intended to minimal stan- A.2d 1214 These process procedure dards of due into the decisions reflect the modern medical classi- disease, ordinary trig- fication of alcoholism as a where acts misconduct can where ger disqualification those afflicted have diminished control full over Moreover, many of the compensation. facets illness. The case before written warn- present ings question us does not of the evidentiary problems avoid associ- viability scope or of this defense this determining ated with the existence and existence, jurisdiction. We note its how- alleged warnings given content oral ever, emphasize employers both prior weeks or months to discharge. The employees responsibility share instance, employer this for whatever rea- addressing problem prevalent so in the son, warning. chose not issue a written workplace. Accordingly, unambiguous under the lan- statute, guage In order real and substantial charge legislative did not meet the defini- progress to be achieved toward eradication warranting per- tion of misconduct problem, of this economic and social em- disqualification receipt manent from the of ployers steps must take en- affirmative unemployment compensation. courage treatment and rehabilitation. (1) may Such action include: education of IV personnel supervisory detecting affect- particular In relation to the factual set (2) employees; progressive ed institution ting of acknowledge this case we that a discipline programs employ- which motivate jurisdictions recognized number have ees to seek treatment to further avoid disci- defense, condition of alcoholism aas under pline discharge; in-house education circumstances, allegation some to an that a counseling programs by large employ- See, discharge was for e.g., misconduct. ers; (4) systematic procedures for referral Unemployment Jacobs In locally programs available rehabilitative California Board, Appeals Cal.App.3d surance Anonymous offered Alcoholics and com- *7 Cal.Rptr. (1972); 102 364 Huntoon v. (5) munity centers; “opt- mental health and Services, Department Iowa 275 Job ing required statutorily offerings in” for of of (Iowa 1979), denied, N.W.2d 445 444 cert. coverage of for treatment alcoholism U.S. 100 S.Ct. 62 L.Ed.2d 68 group plans.5 insurance Where these and (1979); Administrator, Craighead v. 420 taken, other measures have been substan- denied, (La.Ct.App.1982), So.2d 688 cert. tially reported, favorable results have been (La.1982); Tompkins So.2d inuring employers to the benefit both Unemployment Maine Insurance Com employees. and Bureau of National See mission, (Me.1985); 487 A.2d 267 v. Affairs, Leslin Employee Alcoholism and Rela- Hennepin, County 347 N.W.2d 277 tions, 1978); (Special Report see also (Minn.1984); Grajales In re Claim v. Spencer, Developing Em- The Notion Telephone Company, Alcoholic, New York 88 A.D.2d ployer Responsibility Drug-Addicted 451 N.Y.S.2d In re Claim Mentally-Ill Employee: Alexander, 84 A.D.2d 444 N.Y.S.2d An Examination Under Federal and Employment Employment State and Arbitra- Christensen Statutes State, posted Albrecht v. 314 S.E.2d does not disclose the contents (1984). event, but, policy, any posting in we think on a contemplated bulletin is nor suffi- board neither appellee 4. The states in its brief to this Court posting cient does under the statute. Mere not argued proceedings it was never in the prove contemplates receipt. The statute individ- provision warning that the was below applicable written warning receipt ual of a written issued because time, to this case. At same how- past anticipated specific acts of miscon- ever, appellee provision contends that the duct. applied light of could have been in the written (1982 posted Virginia policy § See which was at mine where the Code 33-16-3c Re- Vol.). placement appellant employed. appellee's was The brief findings of fact. This conclu- L.Rev. 659 sion Decisions, 53 John’s St. tion applicable to the also prejudice is sion of no January, 1982 finding of warn- a Board’s assume the employee must The afflicted including evidence, ing. The dealing prob- this with responsibility of clearly testimony, show he was lant's own failing consequences of lem—or face the warnings the date prior to given oral two so, possible and including do discharge. has of his compensa- qualification for by the Board’s prejudiced was shown he right expect Employers have a tion. of one date mistaken identification ignore an aggravate or employees not to warnings. of these ability to work. their affects illness which above, set forth the reasons For has taken Particularly employer where is reversed judgment of the circuit court above-mentioned, and as the measures such and, Virginia Code pursuant to West discharged for misconduct employee Vol.), (1981 Replacement 21A-7-28 § undergo treat- and failure- to seek after Review of to the Board of case remanded problem, a or her abuse of his ment Security Employment Department be looked should not defense of alcoholism in ac- enter an order with instructions to unemployment com- upon favorably by an enunciated principles with the cordance reviewing Fur- court. pensation board or opinion. major pur- ther, note that one of we compensation is poses Reversed and remanded. displaced persons

provide support for while BROTHERTON, dissenting: Justice Accordingly, the they employment. seek receiving unemployed benefits has claimant majority’s holding dissent to the I must reasonably a duty to do “that which a appellant in this case was in this case. The would prudent person his circumstances he alcoholic and admitted an admitted seeking do in work.” night question. on the was Vol.). 21A-6-l(3) (1981 Replacement Re- reported work at least four hours He pursue rehabilita- to undertake and fusal red, late, extremely alco- eyes his alcoholism, chronic tive treatment of five or hol smelled at distance could be therefore, eligibility may place also one’s appellant had been warned six feet. The question. benefits continued up previous showing drunk on two about employ- occasions and on this occasion re assigns as also no terminated. While one ment was following points: versible error the indication would be reliable these factors improperly considered the Board Review drunk, the combina- that the appel as evidence of misconduct *8 claimant of them indicates that tion hospitalized related for treatment lant was was inebriated. drinking problem subsequent to his to his foreman, The claimant was whose finding of fact discharge; and supervision of a number duties included adopted the Board employees employer. of other January of 1982” about warned “was occupation was that of a coal Claimant’s having plainly on his breath miner, very by its nature could Regarding work which wrong set aside. and should be require clear dangerous and would of be point, agree we that evidence the first agile body nothing to insure that head and not be post-discharge such treatment would place shift that would day would take misconduct on the competent show supervised. endanger However, the lives of those there was sub discharge. (Supp.1984) Virginia Code 21A-6-3 support in the record stantial evidence or drunkeness is provides that intoxication with ordinary misconduct determination alone, standing ter- evi misconduct this inadmissible reliance out disqualifies mination for which Accordingly, irrespective of wheth dence. unemployment compensation. considered, the lant actually er the latter was by stating Board of its reverse the Review inclu- To prejudiced not wrong plainly mockery it was makes a good What W.Va.Code. there in

having a if the courts law will enforce overwhelming

it even in face of evi-

dence?

I do not believe decision of the Board and, plainly wrong

of Review was there-

fore, I should feel we have affirmed the

decision of the of Review.

332 S.E.2d 862

STATE West

Rodney E. MANSFIELD.

No. 16454.

Supreme Appeals Court of Virginia.

July