Case Information

*1 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS John Patrone, FILED Petitioner Below, Petitioner vs.) No. 16-0571 (Kanawha County 15-AA-6) RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Board of Review, West Virginia Bureau of Employment Programs;

Workforce West Virginia,

and R.M. Roach and Sons, Inc.,

Respondents Below, Respondents

MEMORANDUM DECISION

Petitioner John Patrone, by counsel Matthew Jividen, appeals the May 13, 2016, order of the Circuit Court of Kanawha County affirming the decisions of the Administrative Law Judge (“ALJ”) and the West Virginia Workforce Board of Review (“BOR”) who found that petitioner was disqualified from unemployment benefits until he had returned to covered employment and had worked for at least thirty working days. Respondents did not file a response. ^[1] On appeal, petitioner argues that his conduct did not amount to misconduct or gross misconduct.

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 R.M. Roach and Sons, Inc., as a cashier from May 9, 2014, until he was terminated on September 22, 2014. On August 18, 2014, petitioner received a written notice that he failed to complete the expected duties while closing the store which resulted in an added labor expense. Two days later, petitioner’s cash register was short $27.87. Thereafter, petitioner received a “Performance Notice” that specifically indicated that “[a]ny further excessive variances will result in further documentation leading to termination.” On September 16, 2014, petitioner’s cash register was short $23.10. Petitioner received another “Performance Notice” that documented his second cash shortage in thirty days. Furthermore, the notice documented that petitioner, in violation of the store’s smoking policy, was smoking near the rear entrance of the store and that he took a thirty-two ounce fountain drink from the store *2 without paying for it. As a result, petitioner was immediately terminated from his employment.

Several days later, petitioner filed for unemployment benefits. In his application, petitioner admitted that he took a fountain drink, but he claims he paid for it the following day. Furthermore, petitioner acknowledged that his cash register was short approximately $20.00 in August, and that he received a written warning that he would be discharged for a second cash shortage. The Deputy Commissioner ruled that petitioner was not eligible to receive unemployment benefits because he failed to comply with a known company policy, regarding his cash shortages, after he received a prior written warning, and found that his conduct amounted to “gross misconduct” pursuant to West Virginia Code § 21A-6-3(2). ^[2]

On November 3, 2014, petitioner appealed, and a hearing was held before an ALJ. Petitioner and R.M. Roach and Sons, Inc. were present and submitted evidence. The ALJ affirmed the findings of the Deputy Commissioner, that petitioner was discharged for gross misconduct. The following month, petitioner appealed to the Board, which issued an opinion on December 23, 2014, that affirmed and adopted the ALJ’s findings and conclusions.

In January of 2015, petitioner filed an appeal with the circuit court. On May 13, 2016, the circuit court entered its order affirming the decisions below. In its order, the circuit court ruled that petitioner was disqualified from unemployment benefits because he was discharged for gross misconduct. This appeal followed.

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). ^[3] On appeal, petitioner argues that his conduct did not amount to misconduct, but instead were “honest mistakes.” Having reviewed the circuit court’s order in light of the record on appeal, we find no error. Hence, we adopt the circuit court’s “Final Order” entered on May 13, 2016, 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 May 13, 2016, order affirming the board’s decision.

Affirmed.

ISSUED:

CONCURRED IN BY:

Chief Justice Allen H. Loughry II

Justice Robin Jean Davis

Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Elizabeth D. Walker

[1] We refer respondents to Rules 10(d) and 10(e) of the Rules of Appellate Procedure, which requires respondents to file a brief or summary response. We decline to employ its use in this matter, but we caution respondents that Rule 10(j) provides for the imposition of sanctions where a party’s brief does not comport with the Rules.

[2] Pursuant to West Virginia Code § 21A-6-3(2), an individual is disqualified from receiving unemployment benefits “[i]f he or she were discharged from his or her most recent work for one of the following reasons . . . any other gross misconduct.” The statute goes on to define “any other gross misconduct” to include “any act or acts of misconduct where the individual has received prior written warning that termination of employment may result from the act or acts.”

[3] Prior to 2007, Workforce West Virginia was known as the Bureau of Employment Programs. See W.Va. Code § 21A-1-4 (2009).