                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



John Patrone,
Petitioner Below, Petitioner
                                                                                  FILED
                                                                                May 22, 2017
vs.) No. 16-0571 (Kanawha County 15-AA-6)                                       RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
Board of Review, West Virginia
Bureau of Employment Programs;
Workforce West Virginia,
and R.M. Roach and Sons, Inc.,
Respondents Below, Respondents

                                MEMORANDUM DECISION

        Petitioner 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.1 On appeal,
petitioner argues that his conduct did not amount to misconduct or gross misconduct.

       The 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
Procedure.

        Petitioner 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

       1
        We refer respondents to Rules 10(d) and 10(e) of the Rules of Appellate Procedure,
which requires respondents to file a brief or summary response. We decline to employ its use in
this matter, but we caution respondents that Rule 10(j) provides for the imposition of sanctions
where a party’s brief does not comport with the Rules.
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without paying for it. As a result, petitioner was immediately terminated from his employment.

        Several 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 § 21A-6-3(2).2

        On 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 and conclusions.

        In 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.

       This 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 Review.

Syl. Pt. 1, Kisamore v. Rutledge, 166 W.Va. 675, 276 S.E.2d 821 (1981).3
       2
          Pursuant to West Virginia Code § 21A-6-3(2), an individual is disqualified from
receiving unemployment benefits “[i]f he or she were discharged from his or her most recent
work for one of the following reasons . . . any other gross misconduct.” The statute goes on to
define “any other gross misconduct” to include “any act or acts of misconduct where the
individual has received prior written warning that termination of employment may result from
the act or acts.”
3
  Prior to 2007, Workforce West Virginia was known as the Bureau of Employment Programs.
See W.Va. Code § 21A-1-4 (2009).
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        On 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.

       For the foregoing reasons, we find no error in the decision of the circuit court and its May
13, 2016, order affirming the board’s decision.


                                                                                        Affirmed.

ISSUED: May 22, 2017


CONCURRED IN BY:

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




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