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. On appeal, petitioner argues that his
conduct did not amount to misconduct or gross misconduct.
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
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 without paying for it. As
a result, petitioner was immediately terminated from his
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
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
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.
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
Syl. Pt. 1, Kisamore v. Rutledge, 166 W.Va. 675, 276
S.E.2d 821 (1981).
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.
foregoing reasons, we find no error in the decision of the
circuit court and its May 13, 2016, order ...