WEST VIRGINIA RECORD

CHARLESTON – The state Supreme Court found no fault with the state Bureau of Employment’s finding that a woman terminated for repeatedly sleeping on the job is disqualified for unemployment benefits.

The court issued its unanimous memorandum opinion in the case styled Keithann Widner v. Charleston Area Medical Center, et al. on June 28.

Keithann Widner was employed as a coder by Charleston Area Medical Center from July 2, 2007, until she was terminated on Oct. 28, 2010. Prior to termination, Widner had received a written warning for sleeping on the job in July 2010, according to the opinion.

In September 2010, she received another written warning for failing to follow CAMC core values. As a result of her performance, the opinion says, she received a performance improvement plan.

Widner received a written warning for a billing mistake in October 2010 and she was caught sleeping on the job again. CAMC discharged her on Oct. 28, 2010 for sleeping at work, an offense which the employer alleged constituted gross misconduct.

Widner filed a claim for unemployment benefits with WorkForce West Virginia and on Nov. 15, 2010, a deputy issued a decision disqualifying Widner from benefits beginning Oct. 24, 2010, through Dec. 11, 2010, for “simple misconduct” pursuant to West Virginia Code § 21A-6-3(2).

On appeal, the administrative law judge reversed the decision and held instead that Widner was discharged for an act of “gross misconduct” because she continued to sleep at work after receiving prior written warnings.

The Board of Review affirmed and adopted the ALJ’s decision in its entirety and Widner appealed to the Circuit Court of Kanawha County, claiming the Board’s decision was erroneous. After the circuit court affirmed the ALJ’s decision, Widner petitioned the state Supreme Court.

On appeal, the petitioner argued that before the gross misconduct penalty is triggered, the employer has to show that the specific acts were misconduct and that the employee was fired for the same type of act. She also argued that involuntary acts, such as those caused by illness, cannot be considered an act of misconduct when determining whether an applicant should be denied unemployment compensation.

“This Court had 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," the opinion says.

“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 Review.

“Upon our review, the Court concludes that the circuit court did not improperly review the Board’s decision nor did it err in affirming it. Having reviewed the circuit court’s “Order of Respondent Charleston Area Medical Center, Inc. Denying Petitioner’s Appeal of Respondent Board’s Disqualification of Unemployment Benefits” entered on June 25, 2012, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the assignments of error raised in this appeal."