                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


                                                                                FILED
Christine A. Stefanko,                                                          June 28, 2013
Petitioner Below, Petitioner                                               RORY L. PERRY II, CLERK
                                                                         SUPREME COURT OF APPEALS
                                                                             OF WEST VIRGINIA
vs.) No. 12-0773 (Kanawha County 10-AA-97)

West Virginia Bureau of Employment Programs,
Board of Review, Mike Jones, James Dillon and
Carole Bloom, as members of the Board of Review,
Russell Frye, Acting Executive Director for Workforce
West Virginia, and Quad Graphics, Inc., Respondents
Below, Respondents

                                MEMORANDUM DECISION

       Petitioner Christine A. Stefanko, by counsel Melinda Dugas, appeals the “Final Order
Affirming Decision of Board of Review” entered by the Circuit Court of Kanawha County on
May 14, 2012, denying petitioner unemployment compensation benefits. The employer Quad
Graphics, Inc., by counsel David Mincer, filed a response.

       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 Quad Graphics, Inc., as an inkjet operator from January 23,
2001, until she was terminated on January 11, 2010. Petitioner received both a verbal and written
warning concerning her attendance issues. Subsequently, petitioner signed a “Last Chance
Agreement” on December 21, 2009, which provided that petitioner would be immediately
terminated for violating company policy in the next 120 days. Petitioner failed to appear for
work on January 8, 2010, and was terminated on January 11, 2010, for violating the “Last
Chance Agreement.” Petitioner filed a claim for unemployment compensation benefits with
WorkForce West Virginia. On January 29, 2010, a WorkForce Deputy issued an initial decision
disqualifying petitioner from benefits for gross misconduct pursuant to West Virginia Code §
21A-6-3(2). Petitioner timely appealed the deputy’s decision to the administrative law judge
(“ALJ”). The ALJ affirmed the deputy’s decision and held that petitioner had received ample
written warnings that absenteeism would lead to her termination and violated the “Last Chance
Agreement.” Petitioner timely appealed to the Board of Review (“Board”), which issued an



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opinion on May 19, 2010, that affirmed and adopted the ALJ’s decision in its entirety. Petitioner
appealed to the Circuit Court of Kanawha County, claiming the Board’s decision was erroneous.1

       On appeal, petitioner first argues that the circuit court erred affirming the ALJ’s decision
without determining whether the “Last Chance Agreement” was a qualifying provision under
West Virginia law. Petitioner next argues that the circuit court erred in affirming the ALJ’s
decision when the findings were made without applying the rules of liberality afforded to
claimants applying for unemployment compensation benefits.

       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).2 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). 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. Petitioner had a number of absences, which resulted in receiving a written
warning and a “Last Chance Agreement.” Subsequently, petitioner failed to appear for work after
signing the “Last Chance Agreement.” Having reviewed the circuit court’s “Final Order
Affirming Decision of Board of Review” entered on May 14, 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. 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
14, 2012 order affirming the Board’s decision.


                                                                                        Affirmed.


       1
         The Court declines to address whether petitioner’s appeal was timely filed in circuit
court pursuant to West Virginia Code § 21A-7-17 because respondent did not raise the issue as a
cross-assignment of error.
       2
        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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ISSUED: June 28, 2013


CONCURRED IN BY:

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




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