                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Women’s Health Center of West Virginia,                                             FILED
Respondent Below, Petitioner                                                    June 3, 2014
                                                                                Released at 3:00 p.m.
                                                                              RORY L. PERRY II, CLERK
vs) No. 13-0519 (Kanawha County 12-AA-125)                                  SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Nicole Parsons,

Petitioner Below, Respondent



                              MEMORANDUM DECISION
        Petitioner Women’s Health Center of West Virginia, by counsel Russell D. Jessee and
Daniel D. Fassio, appeals the order of the Circuit Court of Kanawha County, entered April 24,
2013, that reversed Workforce West Virginia Board of Review’s finding that Respondent Nicole
Parsons was not eligible for unemployment compensation benefits. Respondent, by counsel
Kathy A. Brown, filed a response to which petitioner replied. On appeal, petitioner argues that
the circuit court substituted its own judgment for that of the Board of Review in finding that
respondent was eligible for benefits.

        This Court has considered the parties’ briefs, oral arguments, and submitted record, as
well as the pertinent authorities, and finds no substantial question of law and no prejudicial error.
Accordingly, for these reasons, a memorandum decision affirming the circuit court’s order is
appropriate pursuant to Rule 21 of the Rules of Appellate Procedure.

       Petitioner (“the employer”) is a women’s health center. Respondent (“the employee”) is a
licensed practical nurse, who worked for the employer on a part-time basis, from Monday
through Wednesday each week beginning on June 28, 2010.

        On March 26, 2012, the employee took maternity leave. The employer claims that on
May 10, 2012, it told the employee that, when she returned to work, she would resume her usual
Monday through Wednesday schedule. The employee denies the employer’s claim and counters
that the employer merely inquired about her availability. The employee’s doctor released the
employee to return to work on Monday, May 14, 2012.

       The employee claims that during a phone call on May 15, 2012, the employer’s office
manager told her that it would not be a problem if she did not return to work until May 28, 2012.
On May 19, 2012, the employee sent a fax to the employer’s charge nurse in which she said,
“Beginning the week of 5/28/12 I will be available to work from maternity leave on Monday[s]
and Fridays 8:30 to 5:00 PM.” The employee states that on Friday, May 25, 2012, she told the
employer’s charge nurse that she could “start back beginning Monday[, May 28, 2012,] on
Mondays and Fridays.”


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       On May 29, 2012, the employer’s director sent the employee a letter stating that (1) the
employee’s absences since her physician’s release date, May 14, 2012, were unexcused; (2) the
employee was to return to work on Monday, June 4, 2012; (3) the employee’s work schedule
would be the same as it was prior to her maternity leave (Monday through Wednesday); and (4)
“If you fail to report for work on Monday, June 4, 2012, your employment will be terminated
pursuant to [the employer’s] Handbook” which provides that “employees who are absent from
work for three consecutive days without giving proper notice . . . will be considered to have
voluntarily resigned.” (Emphasis added.) The employee received the May 29, 2012, letter on
Thursday, May 30, 2012. The employee claims that this was the first time the employer sent her
any notification of her post-maternity-leave schedule.

        Early on the morning of June 4, 2012, the employee called the employer to report that she
would not be able to report to work that day as scheduled because her baby was ill and needed to
see a doctor. Later that day, the employee spoke with the employer’s director who referred her to
the termination provision in the May 29, 2012, letter. Two days later, on June 6, 2012, the
employer followed up with a second letter telling the employee that she had been “terminated” as
of Tuesday, June 5, 2012, because her absences from May 28, 2012, had been unapproved and
unexcused, and she had failed to report to work on June 4, 2012.

        The employee applied for unemployment benefits on June 6, 2012. On her application,
she stated that she could work on “Sunday, Monday, Friday, and Saturday day shift only” due to
childcare issues. On June 13, 2012, a deputy at Workforce West Virginia found that the
employee was ineligible for benefits because she was not available to work full time, but was not
disqualified from receiving benefits because she was discharged without sufficient evidence of
misconduct. The employee appealed the ineligibility ruling and the employer appealed the non-
disqualification ruling.

        At a July 27, 2012, hearing before a hearing officer regarding the parties’ appeals, the
employee testified that her intention had been to work on Mondays and Fridays because that was
when she was available. The hearing officer found that the employee was not disqualified from
receiving benefits because her June 4, 2012, absence was not due to misconduct, but to her
infant’s illness for which the employee provided a doctor’s excuse.

        The employer appealed to the Board of Review which concluded that the employee was
eligible for benefits,1 but found that—because she had voluntarily resigned without good cause
involving the fault of her the employer—she was disqualified from receiving benefits pursuant to
West Virginia Code § 21A-6-3(1). The Board of Review reasoned as follows:

       At the end of [the employee’s] maternity leave, [the employer] expected her to
       resume the [Monday through Wednesday] schedule. [The employee] was unable
       to do so. [The employee] effectively quit her job when she indicated she could
       only work Mondays and Fridays. The claimant missed work on June 4, 2012,
       because her daughter was ill. This absence would have been excused under

1
 Employee was found to be eligible because she had agreed to work Fridays, Saturdays,
Sundays, and Mondays, and it is common for an LPN to work weekends.
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       normal circumstances. Nevertheless, the claimant had no plans to work the
       following days of that week, Tuesday and Wednesday. Accordingly, it is found
       that the claimant quit her job. She has failed to show any fault on the part of the
       the employer causing her to quit.

        The employee appealed the Board of Review’s decision to the circuit court. By order
entered April 24, 2013, the circuit court found that the Board of Review was clearly wrong when
it determined that the employee had voluntarily quit her job, and that the employee “was
discharged, but not for misconduct.” In reversing the Board of Review, the circuit court found
that (1) the employee never communicated an intention to resign from her position, and (2) the
employee was terminated for failing to report for one day of work where the employer’s
handbook provided that “three consecutive absences will be treated as a voluntary resignation.”
The court noted that if the employee had remained absent two more days and then received
notice of her voluntary resignation from the employer, the employee may well have been
considered as having left her job without good cause involving fault on the part of her employer.

       The employer now appeals the circuit court’s order. This Court has held that

               “[t]he findings of fact of the [WorkForce West Virginia] Board of Review
       . . . 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). Further,

        [w]e articulated the “extremely limited scope of review” permitted of a court
        reviewing administrative decisions or orders under W.Va. Code, 29A-5-4(g)(5)
        [1964] in Frank’s Shoe Store v. W.Va. Human Rights Commission, 179 W.Va.
        53, 56, 365 S.E.2d 251, 254 (1986). We stated:

                      [A] reviewing court must evaluate the record of the
               agency’s proceeding to determine whether there is evidence on the
               record as a whole to support the agency’s decision. The evaluation
               is conducted pursuant to the administrative body’s findings of fact,
               regardless of whether the court would have reached a different
               conclusion on the same set of facts. Anderson v. City of Bessemer
               City, 470 U.S. 564, 574-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d
               518, 528 (1985).

Gino’s Pizza of West Hamlin, Inc. v. West Virginia Human Rights Com’n, 187 W.Va. 312, 317,
418 S.E.2d 758, 763 (1992).

       On appeal, the employer’s sole assignment of error is that the circuit court substituted its
own judgment for that of the Board of Review when it found that the employer had wrongfully
terminated the employee. The employer argues that the circuit court’s finding is contrary to the
evidence in the record that shows the employee twice said in May of 2012 that she could not

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work on Tuesdays or Wednesdays. The employer concludes that the Board of Review correctly
found that this evidence evinced that the employee had voluntarily quit her job because she
would not have come to work on the Tuesday, June 5, 2012, or Wednesday, June 6, 2012.

        We disagree. Although there were various verbal exchanges between the parties
regarding the date the employee was to resume work following her maternity leave, the record in
this case shows that the employer directed the employee, in writing, to return to work on
Monday, June 4, 2012. Although the employee did not report for work that day, she did notify
the employer that she would be absent due to her infant’s illness by calling the employer that
morning and by later supplying a doctor’s excuse. Even if the employer found this notice to be
insufficient to excuse the absence, it was still only one absence, and not the three absences
required by the employer’s handbook for a finding that the employee had voluntarily quit her
job. Further, there is no evidence in the limited record before us on appeal that the employee
would not have appeared for work on Tuesday, June 5, 2012, or Wednesday, June 6, 2012.
Finally, the Board of Review found that the employee had voluntarily quit her job. However, the
employer sent the employee a notice of termination from the employer, as opposed to a notice
that the employer considered her to have voluntarily quit her job due to unexcused absences.

        The above facts, taken together, reveal that there was insufficient evidence in the record
as a whole to support WorkForce West Virginia Board of Review’s decision that the employee
had effectively quit her job. Therefore, we find that the circuit court did not err in finding that
WorkForce West Virginia Board of Review was clearly wrong, or in finding that the employee
was, in fact, eligible for unemployment compensation benefits.

       For the foregoing reasons, we affirm.
                                                                                        Affirmed.

ISSUED: June 3, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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