Appeal from the Circuit Court of Kanawha County
Honorable Irene C. Berger, Judge
Civil Action No. 03-AA-138
REVERSED
Submitted: May 11, 2005
Filed: June 10, 2005
Charles M. Surber, Jr.
Brian J. Moore
Jackson Kelly PLLC
Charleston, West Virginia
Attorneys for the Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. “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.” Syllabus
point 3,
Adkins v. Gatson, 192 W. Va. 561, 453 S.E.2d 395 (1994).
2. “For purposes of determining the
level of disqualification for unemployment compensation benefits under West Virginia
Code § 21A-6-3, simple misconduct is conduct evincing such willful and wanton
disregard of an employer's interests as is found in deliberate violations or
disregard of standards of behavior which the employer has the right to expect
of his employee, or in carelessness or negligence of such degree or recurrence
as to manifest equal culpability, wrongful intent or evil design, or to show
an intentional and substantial disregard of the employer's interests or of the
employee's duties and obligations to his employer.” Syllabus point 7,
Dailey
v. Board of Review, West Virginia Bureau of Employment Programs, 214 W. Va.
419, 589 S.E.2d 797 (2003).
3. “For purposes of determining the
level of disqualification for unemployment compensation benefits under West Virginia
Code § 21A-6-3, an act of
misconduct shall be considered gross misconduct where the underlying misconduct
consists of (1) willful destruction of the employer's property; (2) assault
upon the employer or another employee in certain circumstances; (3) certain
instances of use of alcohol or controlled substances as delineated in West
Virginia Code § 21A-6-3; (4) arson, theft, larceny, fraud, or embezzlement
in connection with employment; or (5) any other gross misconduct which shall
include but not be limited to instances where the employee has received prior
written notice that his continued acts of misconduct may result in termination
of employment[.]” Syllabus point 4, in part,
Dailey v. Board of Review,
West Virginia Bureau of Employment Programs, 214 W. Va. 419, 589 S.E.2d
797 (2003).
4. “To support a conviction for larceny
at common law, it must be shown that the defendant took and carried away the
personal property of another against his will and with the intent to permanently
deprive him of the ownership thereof.” Syllabus point 3,
State v. Louk,
169 W. Va. 24, 285 S.E.2d 432 (1981),
overruled on other grounds by Syllabus
point 6,
State v. Jenkins, 191 W. Va. 87, 443 S.E.2d 244 (1994).
Per Curiam:
Herbert J. Thomas Memorial Hospital (hereinafter “Thomas” or “the
hospital”), appeals from an order entered March 18, 2004, by the Circuit
Court of Kanawha County. By that order, the circuit court affirmed the decision
of the Board of Review of the West Virginia Bureau of Employment Programs (hereinafter “Board”),
finding that the misconduct committed by Thomas' former employee, James Kirk
(hereinafter “Mr. Kirk”), did not rise to the level of gross misconduct.
Accordingly, the Board found, and the circuit court affirmed, that Mr. Kirk was
entitled to receive unemployment compensation benefits pursuant to the guidelines
set forth in W. Va. Code § 21A-6-3(2) (1990) (Repl. Vol. 2002). On
appeal, Thomas argues that theft is gross misconduct; (See
footnote 1) therefore, Mr. Kirk should not receive unemployment benefits
for his termination from Thomas for stealing food from the cafeteria. Based upon
the parties' arguments, (See
footnote 2) the record designated for our consideration, and the
pertinent authorities, we reverse the decision of the circuit court.
I.
FACTUAL AND PROCEDURAL HISTORY
Mr. Kirk was employed by Thomas on January
5, 1995, as a maintenance person on the night shift. Mr. Kirk admitted that,
during his employment, he removed food items from the hospital cafeteria without
paying for them. He stated that he was allowed by the cashier to take food from
the cafeteria without paying for it, an allegation that is denied by the cafeteria's
cashier. Mr. Kirk further admitted that he would unlock the cafeteria during
its nonbusiness hours and take food without anyone's knowledge. The hospital
was alerted to the situation in April 2003.
During this time, Mr. Kirk was also having
work performance-related problems. A meeting was held between Mr. Kirk and hospital
personnel regarding his performance-related troubles, and, during this meeting,
Mr. Kirk admitted he had been taking food from the cafeteria without paying for
it. Mr. Kirk, however, claimed that he always returned to the cafeteria at a
later time to pay for the food. Thomas then spoke with a witness identified by
Mr. Kirk and learned that Mr. Kirk had approached this witness and asked her
to lie on his behalf. The witness declined to lie for Mr. Kirk and stated that
Mr. Kirk did not return at later dates to pay for food he had previously removed
from the premises. When Thomas investigated and confirmed that Mr. Kirk had removed
food without paying for it,
the hospital terminated Mr. Kirk's employment effective April 27, 2003.
(See
footnote 3)
Mr. Kirk filed for unemployment compensation
benefits. On May 13, 2003, the Deputy Commissioner ruled that Mr. Kirk was not
entitled to receive unemployment benefits because he had committed theft, which
is a form of gross misconduct under W. Va. Code § 21A-6-3(2). Mr. Kirk
appealed, and a hearing was held before an administrative law judge. All parties
were present and submitted evidence, and the administrative law judge affirmed
the findings and rulings of the Deputy Commissioner.
Mr. Kirk then appealed to the Board, which
issued an opinion on August 11, 2003, that reversed the decision of the administrative
law judge. The Board found that while Mr. Kirk committed an act of misconduct
when he removed items from the cafeteria without paying for them, he committed
acts of simple misconduct as opposed to gross misconduct. The Board's opinion
was based on its assumption that other hospital employees also had removed food
from the hospital without paying for the items. Thomas appealed to the Circuit
Court of Kanawha County, claiming that the Board's decision was erroneous and
arguing that theft automatically equals gross misconduct. The circuit court affirmed
the Board, finding that Mr. Kirk's conduct was not willful, wanton, or deliberate
in nature and,
therefore, did not constitute gross misconduct. Thomas asserts on appeal to
this Court that Mr. Kirk committed theft, and further, that theft is automatically
gross misconduct.
II.
STANDARD OF REVIEW
This case is before this Court on appeal
from the circuit court's order affirming the decision of the Board. We have 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).
Therefore, we examine the factual determination that Mr. Kirk took food without
paying for it under a clearly wrong standard, and we examine the legal determination
that theft is not gross misconduct under a de novo standard of review.
Further guidance is provided in our recognition
that “[u]nemployment compensation statutes, being remedial in nature, should
be liberally construed to achieve the benign purposes intended to the full extent
thereof.” Syl. pt. 6, Davis v. Hix, 140 W. Va. 398, 84 S.E.2d
404 (1954). Accord Mercer County Bd. of Educ. v. Gatson, 186 W. Va.
251, 412 S.E.2d 249 (1991) (per curiam); London v. Board of Review of Dep't
of Employment, 161
W. Va. 575, 244 S.E.2d 331 (1978). “Disqualifying provisions of the
Unemployment Compensation Law are to be narrowly construed.” Syl. pt.
1, Peery v. Rutledge, 177 W. Va. 548, 355 S.E.2d 41 (1987). Moreover, “the
burden of persuasion is upon the former employer to demonstrate by the preponderance
of the evidence that the claimant's conduct falls within a disqualifying provision
of the unemployment compensation statute.” Peery, 177 W. Va.
at 552, 355 S.E.2d at 45 (internal citations omitted). Mindful of these applicable
standards, we now consider the parties' arguments.
III.
DISCUSSION
For
purposes of determining the level of disqualification for unemployment compensation
benefits under West Virginia Code § 21A-6-3, simple misconduct is conduct
evincing such willful and wanton disregard of an employer's interests as is
found in deliberate violations or disregard of standards of behavior which
the employer has the right to expect of his employee, or in carelessness or
negligence of such degree or recurrence as to manifest equal culpability, wrongful
intent or evil design, or to show an intentional and substantial disregard
of the employer's interests or of the employee's duties and obligations to
his employer.
Syl. pt. 7,
Dailey v. Board of Review, W. Va. Bureau of Employment
Programs, 214 W. Va. 419, 589 S.E.2d 797 (2003). Moreover,
[f]or
purposes of determining the level of disqualification for unemployment compensation
benefits under West Virginia Code § 21A-6-3, an act of misconduct shall
be considered gross misconduct where the underlying misconduct consists of (1)
willful destruction of the employer's property; (2) assault upon the employer
or another employee in certain circumstances; (3) certain instances of use of
alcohol or controlled substances as delineated in West Virginia Code § 21A-6-3;
(4) arson, theft, larceny, fraud, or embezzlement in connection with employment;
or (5) any other gross misconduct which shall include but not be limited to instances
where the employee has received prior written notice that his continued acts
of misconduct may result in termination of employment[.]
Syl. pt. 4, in part, Dailey, id.
We must
therefore decide whether the action that prompted Thomas' termination of Mr.
Kirk constituted simple misconduct or gross misconduct. It is undisputed that
Mr. Kirk removed food from the cafeteria without paying for it. We have previously
held that “[t]o support a conviction for larceny at common law, it must
be shown that the defendant took and carried away the personal property of another
against his will and with
the intent to permanently deprive him of the ownership thereof.” Syl.
pt. 3, State v. Louk, 169 W. Va. 24, 285 S.E.2d 432 (1981), overruled
on other grounds by Syl. pt. 6, State v. Jenkins, 191 W. Va.
87, 443 S.E.2d 244 (1994). In another unemployment compensation case, we applied
this holding to determine that a claimant did not commit theft or larceny when
he took property that had been abandoned, finding that the claimant did not
take property against the will of the owner with the intent to permanently
deprive the owner of ownership of the property. See Syl. pt. 4, Summers
v. Gatson, 205 W. Va. 198, 517 S.E.2d 295 (1999) (per curiam). The
record in the instant case is clear that Mr. Kirk took items from the cafeteria
without permission from a supervisor and without paying for them. Mr. Kirk
justifies his behavior by stating that the cashier allowed him to take food
without paying for it. However, even if true, that excuse does not apply to
the situations where Mr. Kirk used a master key to unlock the cafeteria when
it was closed and proceeded to take food. Therefore, we find that Mr. Kirk
committed theft when he took items from the cafeteria without paying for them.
Mr. Kirk
argued before the administrative law judge that the items he stole were of little
value; therefore, he did not commit gross misconduct. We have previously held
that a cashier's failure to give a patron an amount of $21.50 owed on a winning
racetrack ticket constituted theft and gross misconduct. Shively v. Gatson,
185 W. Va. 660, 664, 408 S.E.2d 610, 614 (1991) (per curiam). Therefore,
for the purposes of applying the
unemployment compensation statute and based on the particular facts of this
case, the value of the item stolen is inconsequential in determining whether
a theft has occurred. Further, Mr. Kirk argues that his behavior is excused
because other hospital employees also removed food from the cafeteria without
paying for it. Mr. Kirk's reliance on this unproven statement is misplaced
as we are aware of no authority that exempts criminal behavior simply because
other people are guilty of the same crime. The hospital personnel stated that
they investigate and take action in every circumstance where they receive knowledge
of possible misconduct. There is nothing in the record to refute this statement.
After
correctly finding that Mr. Kirk took food without paying for it, the Board and
the circuit court misapplied the law when they held that such conduct amounted
to simple misconduct. An examination of the applicable statutory language reveals
that in cases of “theft, larceny, . . . in connection with [the claimant's]
work; or any other gross misconduct; [the claimant] shall be and remain disqualified
for benefits until he has thereafter worked for at least thirty days in covered
employment[.]” W. Va. Code § 21A-6-3. The plain statutory language
mandates that theft be considered gross misconduct. Where a statute is unambiguous,
the incorporation of additional words, terms, or provisions is not the domain
of the courts, and the statute will be applied as written. See Mallamo v.
Town of Rivesville, 197 W. Va. 616, 477 S.E.2d 525 (1996); Peyton
v. City Council of Lewisburg, 182 W. Va. 297, 387 S.E.2d 532 (1989); State
v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). The statute includes theft as a form of gross misconduct such that unemployment
compensation benefits are withheld indefinitely. Accordingly, Thomas met, by
a preponderance of the evidence, its burden of persuasion that Mr. Kirk's conduct
falls within a disqualifying provision of the unemployment compensation statutes.
IV.
CONCLUSION
Accordingly,
we conclude that Mr. Kirk stole food from the hospital cafeteria and that his
actions amounted to theft. We further determine that Mr. Kirk's theft of food
items constituted gross misconduct and was the basis for Mr. Kirk's termination.
Therefore, unemployment compensation benefits are denied. For the foregoing reasons,
we reverse the March 18, 2004, order of the Circuit Court of Kanawha County.
W. Va. Code § 21A-6-3(2)
(1990) (Repl. Vol. 2002) provides, in pertinent part:
Upon
the determination of the facts by the commissioner, an individual shall be disqualified
for benefits:
. . .
.
(2)
For the week in which he was discharged from his most recent work for misconduct
and the six weeks immediately following such week; or for the week in which he
was discharged from his last thirty-day employing unit for misconduct and the
six weeks immediately following such week. Such disqualification shall carry
a reduction in the maximum benefit amount equal to six times the individual's
weekly benefit. However, if the claimant returns to work in covered employment
for thirty days during his benefit year,
whether or not such days are consecutive, the maximum benefit amount shall
be increased by the amount of the decrease imposed under the disqualification;
except that:
If
he were discharged from his most recent work for one of the following reasons,
or if he were discharged from his last thirty days employing unit for one of
the following reasons: Misconduct consisting of willful destruction of his employer's
property; assault upon the person of his employer or any employee of his employer;
if such assault is committed at such individual's place of employment or in the
course of employment; reporting to work in an intoxicated condition, or being
intoxicated while at work; reporting to work under the influence of any controlled
substance, or being under the influence of any controlled substance while at
work; arson, theft, larceny, fraud or embezzlement in connection with his work;
or any other gross misconduct; he shall be and remain disqualified for benefits
until he has thereafter worked for at least thirty days in covered employment:
Provided, That for the purpose of this subdivision the words “any other
gross misconduct” shall include, but not be limited to, any act or acts
of misconduct where the individual has received prior written warning that termination
of employment may result from such act or acts[.]