                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS



                                                                                     FILED
Coleen D. Sabatino,

Petitioner Below, Petitioner                                                    September 1, 2017

                                                                                    RORY L. PERRY II, CLERK
                                                                                  SUPREME COURT OF APPEALS
vs) No. 16-0769 (Kanawha County 15-AA-104)                                            OF WEST VIRGINIA


Steptoe & Johnson, PLLC,
Respondent Below, Respondent

                               MEMORANDUM DECISION
        Petitioner Coleen D. Sabatino, pro se, appeals the July 18, 2016, order of the Circuit Court
of Kanawha County affirming a July 27, 2015, order of the Board of Review of Workforce West
Virginia that disqualified petitioner from receiving unemployment benefits. Respondent Steptoe &
Johnson, PLLC, by counsel Larry J. Rector, filed a response in support of the circuit court’s order.
Petitioner filed a reply.

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner worked as a legal secretary for respondent, a law firm, in its Bridgeport, West
Virginia, office from December 1, 2014, until March 18, 2015. From her first day of employment,
petitioner was dissatisfied with her treatment by respondent. Petitioner states that her orientation
was deficient in that respondent’s office manager failed to give her a tour of the office, failed to tell
her where the restroom was, and failed to show her the location of the offices of the attorney and
the paralegal for whom she would be working.

       Petitioner also complains that respondent placed her on a performance improvement plan
(“PIP”) for insufficient justification in February of 2015. 1 Shortly thereafter, petitioner was

        1
         Petitioner’s PIP addressed issues of performance, organization, and attendance, and she
was to be evaluated after an original period of thirty days which was later extended twice. When
petitioner applied for unemployment benefits on April 20, 2015, she admitted to absenteeism,
(Continued . . .)
                                                 1

hospitalized for an illness from February 17, 2015, to February 20, 2015. 2 Following her
hospitalization, work restrictions required petitioner to be placed on light duty and her work
release noted that she “may be abnormally fatigued for up to three weeks related to [her] current
condition.” Respondent believed that petitioner’s position was already light duty; however,
respondent extended petitioner’s PIP twice “in fairness to [her]” given the time petitioner missed
because of her hospitalization.

        Finally, petitioner alleges that the paralegal for whom she worked did not cooperate in
helping to get petitioner’s work done and that the coworkers with whom she shared an office were
a distraction to her because they did not concentrate on their jobs and disseminated “falsehoods
and sophomoric details” about her to the office manager. Consequently, by letter dated March 15,
2015, petitioner requested a reassignment to another paralegal and to be moved to another office
space. Respondent denied petitioner’s requests by letter dated March 17, 2015. Respondent first
stated that petitioner’s assigned paralegal behaved professionally toward petitioner and gave
petitioner “every benefit of doubt” when asked about the quality of petitioner’s work. Respondent
concluded that petitioner needed to communicate better with the paralegal instead of being
assigned to another paralegal. With regard to the behavior of respondent’s coworkers, respondent
found that she did not raise that issue until her March 15, 2015, letter and that “[a]ll secretaries in
the office work in the same environment” as petitioner. However, for reasons apparently not
related to this case, respondent relocated one coworker petitioner complained of to another office.

        Respondent’s March 17, 2015, letter also extended petitioner’s PIP until March 27, 2015,
“at which time a decision will be made about [petitioner’s] future employment with [respondent].”
The following day, March 18, 2015, petitioner cleaned out her desk and left a letter on her desk,
stating that she was resigning from her position “effective immediately.”

        Petitioner applied for unemployment benefits on April 20, 2015, stating that she quit her
job because she felt that “[she] was going to be fired” and did not want the termination to show on
her employment history. Petitioner stated that she attempted to “resolve the situation” with her job
difficulties and to do her job to the best of her ability. Though petitioner admitted to absenteeism,
she attributed it “to health reasons beyond [her] control.” Petitioner further stated that she was
“able, available[,] and seeking full-time work.” By a decision dated April 29, 2015, a deputy
commissioner of Workforce West Virginia denied petitioner’s application for benefits on the
ground that she quit work voluntarily without good cause involving fault on the part of respondent.

       Petitioner appealed the deputy commissioner’s decision, and an administrative hearing was
held on May 29, 2015. The administrative law judge (“ALJ”) admitted petitioner’s April 20, 2015,
statement; an April 22, 2015, request for separation information filled out by respondent; and the
deputy commissioner’s April 29, 2015, decision as exhibits. Petitioner requested the admission

which she attributed “to health reasons beyond [her] control.”
       2
           The record does not disclose the exact nature of petitioner’s illness.


                                                    2
into evidence of the work release completed by a physician’s assistant following her
hospitalization, which the ALJ granted. Respondent sought the admission of (1) the March 15,
2015, letter, in which petitioner requested a reassignment to another paralegal and to be moved to
another office; (2) the March 17, 2015, letter, in which respondent denied those requests; (3) the
March 18, 2015, letter in which petitioner resigned “effective immediately”; (4) a March 23, 2015,
letter from petitioner to respondent, in which she took issue with the statements contained in
respondent’s March 17, 2015, letter; and (5) a timeline of petitioner’s employment prepared by
respondent. The ALJ admitted both the letters and the timeline.3

        In addition to the documentary evidence, petitioner and respondent’s director of employee
relations testified at the May 29, 2015 hearing. At the beginning of her testimony, petitioner
appeared hesitant and also noted that the hearing had been scheduled only for thirty minutes. The
ALJ advised petitioner that, regardless of how long the hearing was scheduled to last, he would
“take as much time as necessary for [her] to have a full, fair hearing.” Thereafter, the ALJ
repeatedly asked petitioner whether she felt limited in how long she had to testify. During one of
those exchanges, the ALJ reassured petitioner that he wanted her to tell him everything that she felt
was important for him “to make a fair decision regardless of how long it [took her].” Also,
following the admission of the timeline of petitioner’s employment prepared by respondent, the
ALJ allowed petitioner to testify as to what she felt were inaccuracies in that exhibit.

        During petitioner’s testimony, she confirmed that (1) from the day she started working for
respondent, she “felt that [she] was not given a fair shot”; (2) respondent granted two extensions of
her PIP because of her hospitalization; and (3) she and her coworkers had a lot of “personal
conflict.” The ALJ asked petitioner whether she felt that she resigned or was terminated. Petitioner
answered, “I quit.” The ALJ inquired whether petitioner quit “voluntarily.” Petitioner responded,
“I did.” However, petitioner further testified that, if she did not quit her job, she believed that
respondent would have fired her. Consequently, the ALJ asked petitioner whether “any supervisor
or manager [told her that she was] going to be discharged.” Petitioner stated that no one told her
that she was going to be terminated, but that she was left with the impression that respondent
wanted to fire her. However, petitioner admitted that the last extension of her PIP occurred on
March 17, 2015, the day before she quit.


       3
         Petitioner objected to the admission of respondent’s timeline and the April 22, 2015,
request for separation information filled out by respondent on the ground that each contained
inaccuracies. The ALJ ruled that such an objection went to the weight that each document should
be given, rather than its admissibility. On appeal, petitioner argues that the ALJ failed to follow the
West Virginia Rules of Evidence in his rulings. However, 84 W.Va.C.S.R. § 1-6.3 provides that
those rules are generally not applicable to administrative hearings in contested unemployment
benefit cases. Upon review of the transcript of the May 29, 2015, hearing, we find that the ALJ did
not abuse his discretion in admitting all exhibits offered by the parties. See Skaggs v. Elk Run Coal
Co., Inc., 198 W.Va. 51, 63, 479 S.E.2d 561, 573 (1996) (stating that evidentiary rulings are
reviewed only for abuse of discretion).


                                                  3

        Respondent’s employee relations director testified that, because petitioner worked for only
one attorney (who also had a legal secretary at his other office) and one paralegal, she had a light
workload in comparison to other legal secretaries employed by respondent. The employee
relations director further testified that petitioner’s PIP addressed issues of performance,
organization, and attendance. However, the ALJ limited the testimony of the employee relations
director regarding petitioner’s level of compliance with her PIP because the parties agreed that
petitioner voluntarily quit her job (instead of being terminated by respondent) and because
petitioner never testified that the issues that she had with respondent and her coworkers involved
discrimination against her based on status such as gender or age.4

        In a decision dated June 1, 2015, the ALJ noted petitioner’s personal problems with her
coworkers and her assigned paralegal, and the statement contained in her work release stating that,
following her hospitalization, she could become “abnormally fatigued.” The ALJ specifically
addressed petitioner’s health by finding that, if she felt “abnormally fatigued” or overwhelmed,
she never raised that concern with respondent. The ALJ further found that petitioner had a light
workload for a legal secretary because petitioner worked for only one attorney (who also had a
legal secretary at his other office) and one paralegal. With regard to petitioner’s contention that she
quit her job in anticipation of being terminated, the ALJ found that “the evidence supports a
finding that [respondent] did not desire to discharge [petitioner]” because respondent extended
petitioner’s PIP “on two separate occasions.” Accordingly, the ALJ concluded that petitioner was
disqualified from receiving unemployment benefits, pursuant to West Virginia Code § 21A-6-3(1)
because she quit work voluntarily, without good cause involving fault on the part of respondent, by
“[leaving] a written resignation on her desk on March 18, 2015.”

        Petitioner appealed the ALJ’s June 1, 2015, decision to the Board of Review of Workforce
West Virginia (“Board”). On June 21, 2015, petitioner filed a motion with the Board requesting a
remand for an additional hearing with a different ALJ because she was “cut off” at the May 29,
2015, hearing before she could present necessary evidence. By order entered on July 27, 2015, the
Board adopted the ALJ’s decision in its entirety and denied petitioner’s motion because she failed
to show good cause for a remand. Petitioner appealed that order to the Circuit Court of Kanawha
County, which affirmed the Board’s decision by order entered on July 18, 2016. The circuit court
determined that the ALJ properly found that petitioner quit her job voluntarily without good cause
involving fault on the part of respondent and that the Board properly denied petitioner’s request for
a remand because there was no good cause shown. Petitioner now appeals from the circuit court’s
July 18, 2016, order affirming the Board’s July 27, 2015, order that disqualified her from receiving
unemployment benefits.

        In syllabus point 1 of Childress v. Muzzle, 222 W.Va. 129, 663 S.E.2d 583 (2008),we held
as follows:



       4
       Petitioner states that she was forty-eight years old at the time of her employment with
respondent.

                                                  4

               “The findings of fact of the Board of Review of [Workforce West Virginia]
       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.” Syllabus Point 3,
       Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994).

Though the West Virginia Unemployment Compensation Law, West Virginia Code §§ 21A-1-1 to
21A-11-1, is liberally construed as remedial legislation, the purpose of the unemployment
compensation fund is to protect “workers of employers who wrongfully cause their employees to
voluntarily leave their employment.” Verizon Services Corp. v. Epling, 230 W.Va. 439, 446, 739
S.E.2d 290, 297 (2013) (per curiam) (internal quotations and citations omitted; emphasis by the
Court).5 West Virginia Code § 21A-6-3(1) provides as follows:

       [A]n individual is disqualified for benefits . . . (1) [f]or the week in which he or she
       left his or her most recent work voluntarily without good cause involving fault on the
       part of the employer and until the individual returns to covered employment and has
       been employed in covered employment at least thirty working days.6

        Initially, we address the standards of review that are applicable to this case. First, the
parties dispute whether the question of good cause for an employee’s decision to quit employment
constitutes a question of law, subject to de novo review, or a question of fact on which the Board’s
determination is entitled to deference. In Adkins, we found that whether a school employee was
entitled to benefits for her summer unemployment pursuant to West Virginia Code §
21A-6-15(2)(b) constituted a question of statutory interpretation, which we reviewed de novo. 192
W.Va. at 566, 453 S.E.2d at 400. More recently, with regard to the statute at issue in this case, we
have similarly determined that the “legal conclusion that [an employee] quit her job ‘voluntarily
without good cause involving fault on the part of the employer’ within the meaning of West
Virginia Code § 21A-6-3(1) . . . is subject to a de novo standard of review.” Verizon Services Corp.
230 W.Va. at 443, 739 S.E.2d at 294 (quoting May v. Chair and Members, Bd. of Review, 222
W.Va. 373, 376, 664 S.E.2d 714, 718 (2008) (per curiam)). Therefore, we agree with petitioner
that we review de novo whether her decision to quit was without good cause involving fault on the
part of respondent.

        Second, petitioner contends that the Board erred in denying her motion to remand the case
for an additional hearing because the ALJ stifled her presentation of evidence at the May 29, 2015,

       5
        As we explained in Childress, because the unemployment compensation fund constitutes
an insurance program—not an entitlement program—its purpose “is advanced both when benefits
are denied to those for whom the Act is not intended to benefit, as well as when benefits are
awarded in proper cases.” 222 W.Va. at 133, 663 S.E.2d at 587.
       6
        The Legislature recently amended West Virginia Code § 21A-6-3(1) but did not change
the language applicable to this case.


                                                 5

administrative hearing. We review the Board’s decision that good cause was not shown for an
additional hearing only for an abuse of discretion. See Syl. Pt. 1, McDougal v. McCammon, 193
W.Va. 229, 455 S.E.2d 788 (1995) (finding that procedural rulings are reviewed for abuse of
discretion).7

        The May 29, 2015, hearing transcript contradicts petitioner’s claim that the ALJ stifled her
presentation of evidence. We find that this case is analogous to Denney v. Rutledge, 174 W.Va.
820, 822, 329 S.E.2d 893, 895-96 (1985) (per curiam), in which we rejected the employee’s
contention that the ALJ failed to make a proper inquiry into the facts of her case because the record
reflected that a hearing was held, during which the employee and the employer presented
evidence. First, petitioner—not the ALJ—raised the issue of the hearing being scheduled only for
thirty minutes. The ALJ repeatedly assured petitioner that he would “take as much time as
necessary for [her] to have a full, fair hearing” and wanted her to tell him everything that she felt
was important for him “to make a fair decision regardless of how long it [took her].” Second,
though petitioner alleges that the ALJ did not inquire into the reasons for her belief that she would
be fired if she did not quit, the ALJ asked her numerous questions regarding her decision to leave
her employment and she testified that she felt that respondent never gave her “a fair shot” and that
she and her coworkers had a lot of “personal conflict.” Therefore, the transcript reflects that
petitioner was allowed to provide the testimony that is the basis for her claim that she voluntarily
quit her job for good cause involving fault on the part of respondent. Accordingly, we conclude
that the Board did not abuse its discretion in denying petitioner’s motion for a remand for an
additional hearing.8

         We now address whether petitioner had good cause to quit her job because of fault on the
part of respondent. Petitioner contends that any reasonable person would have quit petitioner’s job
given the issues that she had with respondent and her coworkers, and that her case is analogous to
Curry v. Gatson, 180 W.Va. 272, 376 S.E.2d 166 (1988). We found in Curry that the employee
acted reasonably in quitting a job where she was subjected to racial discrimination. Id. at 275, 376
S.E.2d at 169. Therefore, we find that the instant case is distinguishable from Curry because the
ALJ found that the issues that petitioner had with respondent and her coworkers were not
discriminatory in nature, which is a finding she does not dispute.
       7
         We decided McDougal under the West Virginia Rules of Civil Procedure and the West
Virginia Rules of Evidence, which do not apply in the hearing process pursuant to 84 W.Va.C.S.R.
§ 1-6.3. However, we find that the standard of review for procedural rulings in such cases is the
same given the need for the hearing process to be conducted “expeditiously” pursuant to 84
W.Va.C.S.R. § 1-2.2. See McDougal,193 W.Va. at 235, 455 S.E.2d at 794 (finding that procedural
rulings “must be made quickly, without unnecessary fear of reversal, and must be individualized to
respond to the specific facts of each case”).
       8
         We further reject petitioner’s contention that the Board made insufficient findings with
regard to her motion and find that the determination of no good cause shown was sufficient given
the adequacy of the May 29, 2015, hearing.


                                                 6

        With regard to petitioner’s health, she alleges that, while being a legal secretary may not
include much physical exertion, it can be mentally exhausting. However, the ALJ found that
petitioner had a light workload for a legal secretary because she worked for only one attorney (who
also had a legal secretary at his other office) and one paralegal. We agree with the ALJ. Stress is
common within any law firm that imposes deadlines for its employees to meet. Therefore, we find
that petitioner’s case is analogous to Denney, in which an employee of a mental health facility
became tired of hearing other employees scream at patients in apparent attempts to control them.
174 W.Va. at 821, 329 S.E.2d at 894-95. In Denney, we found that “there is no indication that the
conditions in the hospital differed from conditions customarily present in such a hospital” and
concluded that the employee was properly disqualified from receiving unemployment benefits
pursuant to West Virginia Code § 21A-6-3(1) because she voluntarily quit her job. Denney, 174
W.Va. at 822, 329 S.E.2d at 895-96. In the instant case, the record contains no indication that the
legal secretary position in which petitioner was employed by respondent was any different than
such a position with any other law firm. Moreover, according to petitioner’s April 20, 2015,
statement, she was “able, available[,] and seeking full-time work” regardless of any health issue.
Accordingly, we find that the Board properly found that petitioner quit her job voluntarily, without
good cause involving fault on the part of respondent, and disqualified her from receiving
unemployment benefits pursuant to West Virginia Code § 21A-6-3(1).

       For the foregoing reasons, we affirm the circuit court’s July 18, 2016, order upholding the
Board’s July 27, 2015, order.

                                                                                         Affirmed.
ISSUED: September 1, 2017

CONCURRED IN BY:

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




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