WEST VIRGINIA RECORD

CHARLESTON – Massey Energy CEO Don Blankenship didn't hire Deborah May as his maid or fire her, but she asks the West Virginia Supreme Court of Appeals to award her unemployment compensation because he overworked and mistreated her.

May pursues an unemployment claim not against Blankenship but against Mate Creek Security of Delbarton, which hired her and sent her to Blankenship.

Four times her claim has failed. At oral arguments April 1, her attorney, Kathryn Reed Bayless of Princeton, took a fifth and final shot.

Her opponent, Eric Kinder of Battle, tried to escape Blankenship's shadow. He pleaded that he did not represent Massey Coal or Blankenship.

Still, he caught the heat that some of the Justices radiated.

Justice Joseph Albright told Kinder that according to his argument, if Mate Creek paid May they didn't care how many hours she worked.

"Turn that coin over," Albright said. "What if she can't afford to quit?"

He said, "She had to work until it became unbearable."

Justice Larry Starcher said, "There just came a time when she couldn't take any more."

Justice Robin Davis said there was a unilateral change in May's job, and Kinder answered that the job didn't change.

Davis said, "I can't believe you stand here with a straight face and tell us her job didn't change."

May's attorney, Kathryn Reed Bayless of Princeton, reminded the Justices of evidence that Blankenship grabbed May, ripped a tie rack from a wall, and blew up over ice cream.

Mate Creek hired May in 2001, at $8.56 an hour. Her pay increased 30 cents a year later, but did not go up again.

For overtime, Mate Creek paid time and a half.

She quit in 2005 and filed for unemployment compensation.

A state employee, an administrative law judge, a review board and Kanawha Circuit Judge James Stucky all turned her down.

Bayless appealed, writing that May was compelled to quit "because of unilateral changes in her job, instigated solely by her employer."

May's duties expanded and her hours increased, according to Bayless. One week, Bayless wrote, May worked 33 overtime hours.

Once on a bus, Bayless wrote, Blankenship grabbed May in front of guests and told her to get off. Once, she wrote, he slung food she had bought and he grabbed her wrist.

Bayless claimed Mate Creek was related to Blankenship's Massey Energy, and that he was her supervisor all along.

Kinder responded, "In each proceeding below, Ms. May was disqualified from receiving unemployment compensation benefits because she voluntarily left her job without good cause involving fault on the part of the employer."

She quit because Mate Creek didn't grant a raise, he wrote.

At oral argument, Bayless said Blankenship got angry over a coat hanger and ripped a tie rack out of a closet.

Bayless said he left a note telling May she would get a call about it.

May wound up in a hospital, Bayless said, fearing a heart attack.

Starcher said it sounded like she could have claimed workers' compensation.

Albright said, "If you assume we are sympathetic to your argument, is it our function to remand with directions or draw our own conclusions?"

Bayless said the Justices should take it as they find it.

Justice Spike Maynard recused himself on the spot when it became clear the case involved Massey.

Justice Brent Benjamin listened to arguments and will participate in the decision, but he had to leave during the proceedings because of a family matter.