664 S.E.2d 714
In order to prove a constructive discharge, a plaintiff
must establish that working conditions created by or known to
the employer were so intolerable that a reasonable person would
be compelled to quit. It is not necessary, however, that a
plaintiff prove that the employer's actions were taken with a
specific intent to cause the plaintiff to quit.
In addition to matters discussed in the majority opinion, the unrefuted evidence
before the Board of Review showed the following, as recited in the brief of Ms. May, whose
duties included performing personal tasks for Mr. Don Blankenship, who occupied the home
owned by Rawl Sales:
On two different occasions, Mr. Blankenship physically
grabbed Ms. May. Once, while trying to stock the coach bus
after a last minute notice to do so, Mr. Blankenship grabbed her
arm, pulled her towards him, and told her to leave the bus. Ms.
May found that treatment to be embarrassing since many of Mr.
Blankenship's guests were on the bus when the incident
occurred. On another occasion, Mr. Blankenship sent her to
McDonald's to purchase breakfast for him and his interior
decorator. Ms. May placed the order, accepted the food and
returned to the Blankenship home. As she unpacked the food,
Mr. Blankenship discovered that McDonald's filled the order
incorrectly; Mr. Blankenship started slinging the food and he
grabbed Ms. May's wrist, telling her “Any time I want you to do
exactly what I tell you to do and nothing more and nothing
less.”
Mr. Blankenship directed, through his secretary, that Ms.
May write him an explanation of why there was no ice cream in
the freezer at one of the houses. He believed she was mocking
him by failing to purchase the ice cream he wanted. Ms. May
did write an explanation on July 11, 2005. She pointed out that
he did not seem to realize “the magnitude and heavy volume of
work that has been put in my lap since I began working here,
with only one $.30 raise in the last four years. Today you have
crushed me.” She apologized and asked that he tell her if he did
not want her to work any longer. Mr. Blankenship sent back a
hand-written note acknowledging that she was under a lot of
stress and that his comments added to her stress. He
acknowledged her financial difficulty and proceeded to advise
that she was well paid in comparison to others in West Virginia
and Kentucky and explained that folks working for him
sometimes decreased his comfort level. In an explanation
apparently intended to be critical of the food purchases she had
made for the home, he gave an example related to low carb
foods.
On or about July 12, 2005, Ms. May forgot to leave a
coat hanger out for Mr. Blankenship to hang his coat. Mr.
Blankenship's reaction was to tear the coat hanger and tie rack
out of the closet. He left her a note explaining that she would
get a call explaining why he tore it out. He wrote her that he
“had 3 dogs stolen in 9 days, mines robbed, people complain
incessantly, all of them want more money. None of them do
what their (sic) asked.” Mr. Blankenship's secretary spoke to
Ms. May and explained that “he tore the coat hanger and rack
and stuff all out . . . that if I had to fix it and repair it and put
everything back, it would be a good reminder that I was not to
forgot (sic) that hanger in the future.
This shocking conduct directed at Ms. May leaves no doubt that Ms. May's
working conditions were “so intolerable that a reasonable person would be compelled to
quit.” Slack, supra. Such conduct by an employer is reminiscent of slavery and is an affront
to common decency.
Therefore, Ms. May's termination of employment should be treated as a firing,
and her eligibility for unemployment benefits is unquestionable.
I am authorized to state that Justice Starcher joins in this separate opinion.