STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



Roy A. Higginbotham,
Plaintiff Below, Petitioner                                                     FILED
                                                                           November 10, 2016
vs) No. 15-1211 (Kanawha County 14-AA-89)                                      RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Charleston Area Medical Center, Inc.,
Defendant Below, Respondent


                              MEMORANDUM DECISION
         Petitioner Roy A. Higginbotham, by counsel Keith A. Jones, appeals the November 18,
2015, order of the Circuit Court of Kanawha County affirming the decisions of the
Administrative Law Judge (“ALJ”) and the Board of Review (“BOR”) finding that petitioner
was indefinitely disqualified from receiving unemployment compensation benefits until he had
returned to covered employment and had worked therein for at least thirty working days.
Respondent Charleston Area Medical Center, Inc. (“CAMC”), by counsel Howard G. Salisbury,
Jr., filed its response, to which petitioner submitted a reply.

       This 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. For these reasons, a memorandum
decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner worked for respondent as a dietary clerk from April 15, 2013, until he was
discharged from employment on February 17, 2014.1 Respondent has a tardiness policy and
progressive discipline policy, both of which are set out in an employee handbook; the handbook
is available to employees on respondent’s internal computer network. When petitioner was hired,
he was notified of the existence of the handbook and how to access the same. Between May 22,
2013, and February 17, 2014, petitioner received counseling and warnings for his tardiness,
including the completion of a “coaching form,” a verbal warning, written warnings, and
eventually discharge. 2 According to the record before the circuit court, petitioner was tardy for

       1
          Petitioner testified before the ALJ that he informed respondent he would be relying on
public transportation to get to work.
       2
           The record includes an “Employee Coaching Documentation Form” dated May 22,
2013, for tardiness with a summary of corrective plan of action to arrive to work at his scheduled
time; an “Employee Attendance/Tardy Discipline Form” dated July 12, 2013, which shows that
(cont. . . .)
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work at least nineteen times during his short employment with respondent.3 Following his
termination, petitioner filed a claim for unemployment compensation benefits.

        On March 14, 2014, a Workforce West Virginia Deputy entered a decision finding that
petitioner was indefinitely disqualified from receiving unemployment compensation benefits
until he had returned to covered employment and had worked therein for at least thirty working
days. The BOR affirmed that decision by order entered June 6, 2014. Petitioner appealed that
decision to the circuit court, and on November 18, 2015, the circuit court entered its order
affirming the decisions below, concluding that the findings of fact made by the ALJ and adopted
by the BOR were fully supported by the weight of the reliable and probative evidence and were
not clearly wrong.

        In its order, the circuit court found that a claimant who is otherwise eligible to receive
unemployment compensation benefits may be disqualified from receiving such benefits if he is
discharged due to misconduct. It also found that while a discharge for misconduct carries a six-
week disqualification, an employee discharged for gross misconduct remains disqualified until
he or she has returned to covered employment and worked in such employment for at least thirty
days. The circuit court concluded that the many recurrent instances of tardiness over a relatively
short period of employment provide sufficient indicia of willfulness, wantonness, carelessness,


he was issued a verbal warning for seven tardies (with the dates listed) and that “[i]t has been
discussed that future occurrences related to this disciplinary action will result in: Written
Warning Three suspensions (including 2nd written warnings) within a four (4) year time period
will result in discharge” (emphasis in original); an “Employee Attendance/Tardy Discipline
Form” dated September 26, 2013, for two additional tardies, which also states that three
suspensions within a four year time period will result in discharge; an “Employee
Attendance/Tardy Discipline Form” dated December 8, 2013, for four tardies, which also
contains the discharge language; and a “CAMC Health System Attendance and Tardy Discipline
Form” dated February 17, 2014, with four tardy dates listed, which states that “[i]f the employee
has two (2) occasions of absence/tardy within twelve (12) months of the last corrective action,
the last corrective action will be repeated. It has been discussed that future occurrences related to
this disciplinary will result in: Select next corrective action.” On February 17, 2014, a Human
Resource Associate completed a “Personnel Termination Notice” for petitioner stating that
petitioner was terminated under CAMC’s progressive discipline policy for attendance, citing the
verbal warning, written warning, second written warning, and termination due to more than four
instances of being tardy. He further stated that “Roy was granted more occasions of tardy than
what was required by policy in an attempt to get Roy on the right track.” That form also indicates
that petitioner had received written warning that the violation was a ground for discharge but that
he did not receive such verbal warning.
       3
          Petitioner points to an incident on July 2, 2013, wherein he reported to CAMC’s
Employee Health Department but the department would not release him to return to work (due to
an eye issue) for fear that he would infect other employees. Therefore, he claims he was unable
to report to work on time and was charged with two tardies since he was over two hours late to
work.


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or negligence to constitute misconduct. The circuit court also found that petitioner’s pattern of
conduct in the form of recurrent and excessive tardiness constituted misconduct within the
meaning of the unemployment compensation statute and that such misconduct constituted gross
misconduct under the statute. It, therefore, adopted the findings of the ALJ, which were affirmed
by the BOR. Petitioner appeals from that order.

               “The findings of fact of the Board of Review of the West Virginia
       Department of Employment Security 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).

Syl. Pt. 3, Smittle v. Gatson, 195 W. Va. 416, 465 S.E.2d 873 (1995).

        In the instant matter, petitioner asserts three assignments of error, though he frames his
arguments in a different manner. Therefore, this Court will address the actual arguments set forth
by petitioner in his brief. The first such argument is that the circuit court erred in affirming the
BOR and ALJ because respondent failed to present sufficient evidence that, under the facts of
this case, being tardy constituted simple misconduct under West Virginia unemployment
compensation law. He argues that the purpose of the unemployment compensation system is to
protect the unemployed, contending there were no allegations of “gross misconduct” which
would disqualify him from receiving unemployment compensation benefits pursuant to West
Virginia Code § 21A-6-3. He further asserts that respondent simply relies on petitioner’s
tardiness, confusing disciplinary forms, and a part of respondent’s employment policies
petitioner claims he had never seen. Petitioner’s argument is premised on his contention that
there was no evidence presented that when he was tardy he acted with willful and wanton
disregard of respondent’s interest. However, he concedes that his tardiness may have amounted
to “unsatisfactory conduct.”

        West Virginia Code § 21A-6-3 specifically states that 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.” Id. The first written warning respondent issued to petitioner, which petitioner
does not dispute signing or receiving, specifically states that three suspensions, including second
written warnings, within a four-year time period will result in discharge; the second written
warning contains the same language. These warnings listed the dates of numerous tardies as the
basis for the same. The third written warning was dated February 17, 2014. On that same date, an
associate from respondent’s human resources division completed a personnel termination notice
for petitioner for attendance, citing the verbal warning, written warning, second written warning,
and termination due to more than four instances of being tardy. Petitioner appears to contest only
a few incidents of tardiness from the nineteen identified by respondent, so it is clear that he does
not contest being tardy on more than four occasions. Contrary to petitioner’s contention, the
statute does not contain any language requiring an employer to produce evidence of intent with

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regard to “any other gross misconduct.” Under the clear language of the statute, neither the
circuit court nor the administrative bodies before it erred in finding that petitioner was
indefinitely disqualified from receiving unemployment compensation benefits until he had
returned to covered employment and had worked therein for at least thirty working days.
        Petitioner’s second argument is that the circuit court erred in denying him unemployment
benefits because he was not provided with due process under West Virginia unemployment
compensation law. He asserts that even if there had been sufficient evidence that the tardiness
constituted simple misconduct, the BOR and ALJ erred in finding that respondent provided
petitioner with the clear written notice required by law that further tardiness could result in
termination. Petitioner is critical of respondent’s presentation of the employee handbook, arguing
that the handbook could only be accessed on the internal computer network that he could not
access while on duty. He contends that the lack of access to the handbook and the confusing
forms show that the clear warning mandated by the due process requirements of West Virginia
unemployment compensation law was not provided to petitioner.

        The circuit court’s November 18, 2015, order states that in reaching its conclusion it
considered the petition for review, the documentary record consisting of the transcript of the
hearing before the ALJ and exhibits admitted into evidence at that hearing, and the briefs of
counsel. The circuit court listed the warnings, both verbal and written, provided to petitioner
throughout his employment with respondent and adopted the findings of the ALJ, which were
also adopted by the BOR. The ALJ’s order found that petitioner was clearly informed that
continued violations of respondent’s tardiness policy would result in discharge from
employment. As this Court previously recognized, “[t]he legislature, by requiring notice in
writing, obviously intended to interject minimal standards of due process into the procedure
where acts of ordinary misconduct can trigger full disqualification for unemployment
compensation.” Federoff v. Rutledge, 175 W. Va. 389, 395, 332 S.E.2d 855, 860 (1985). While
West Virginia Code § 21A-6-3 has been amended since Federoff, there is no dispute that
respondent issued written warnings to petitioner advising him that if his tardiness continued he
would be terminated from his job. Petitioner also does not allege that respondent prevented him
from accessing the handbook aside from the hours he was required to perform his job duties.
Because petitioner received written notice that he would be terminated if he continued to violate
respondent’s tardiness policy and respondent’s handbook set forth its progressive discipline
policy, we find that petitioner has failed to show that he did not receive due process in the denial
of unemployment compensation benefits relative to his employment with respondent.

       For the foregoing reasons, we affirm.


                                                                                         Affirmed.


ISSUED: November 10, 2016




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CONCURRED IN BY:

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




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