                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Laura Randolph-Kennedy,                                                           FILED
Petitioner Below, Petitioner                                                     May 1, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0682 (Kanawha County 13-AA-6)                                       OF WEST VIRGINIA


Verizon Services Corp.,
Respondent Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Laura Randolph-Kennedy, appearing pro se, appeals the order of the Circuit
Court of Kanawha County, entered April 3, 2014, that affirmed an order of the Board of Review of
Workforce West Virginia, entered December 6, 2012, disqualifying petitioner from receiving
unemployment benefits. Respondent Verizon Services Corp., by counsel Mark H. Dellinger, 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner worked for respondent from July 12, 2007, to July 14, 2012, first as a sales
representative and then as a customer service clerk in Clarksburg, West Virginia. According to the
testimony of respondent’s senior labor relations consultant, Thomas Stribling, all
non-management employees at respondent’s Clarksburg office were represented by the
Communications Workers of America (“union”). Previously, respondent and the union negotiated
a collective bargaining agreement (“CBA”) that was extended in 2011 to apply to the period of
petitioner’s separation from employment.

       The CBA contained two provisions that pertain to the instant case: Article 35 and Article
36A. At an October 2, 2012 administrative hearing,1 Mr. Stribling testified that Article 35 allowed
respondent to implement layoffs to reduce its workforce under certain terms and conditions,
including advance notice to the union that layoffs would need to be implemented if too few

       1
         The administrative hearing was scheduled because respondent appealed the initial
decision of the deputy commissioner, dated August 2, 2012, that petitioner was not disqualified
from receiving unemployment benefits.
                                             1
employees voluntarily agreed to terminate employment in exchange for the receipt of an enhanced
income security plan (“EISP”).2 In contrast, Mr. Stribling testified that Article 36A permitted
respondent to offer employees an unlimited number of EISP’s in an effort to achieve wholly
voluntary reductions in its workforce.

        Mr. Stribling explained that in connection with an EISP respondent offered in June of
2012, that respondent determined that it had a surplus of workers; that eight employees, including
petitioner, accepted that EISP; and that respondent offered the June of 2012 EISP pursuant to
Article 36A of the CBA—not Article 35. Mr. Stribling further testified as follows:

       Q.      And of the 20 individuals out of the 28 who did not accept the EISP offer,
       are they still employed with [respondent]?

       A.      Yes.

       Q.      Still doing their same job with the same pay?

       A.      Yes.

       Q.      And so it’d be fair to say in connection with this EISP offer that was made
       in June of 2012 that [respondent] received fewer volunteers than it had identified as
       surplus; correct?

       A.      Yes.

       Q.      And even though that occurred, no one was laid off?

       A.      Correct.

      Mr. Stribling testified that the newspaper articles regarding the possibility that respondent
might lay off employees did not relate to the corporate division in which petitioner was
working—Verizon of West Virginia. According to Mr. Stribling, respondent has not laid off any

       2
          Pursuant to Article 36A of the CBA, along with its attached Exhibit VII, an “enhanced
income security plan” is an offer respondent makes to individual employees by which it provides
the employee certain incentives in exchange for the employee agreeing to voluntarily terminate
employment. Sections 1, 2, and 3 of Article 36A and Exhibit VII describe these incentives as (1) a
termination allowance of $1,100 for every “completed year” up to, and including, thirty years of
service for a total of $33,000; (2) a termination bonus of $10,000; and (3) an allowance for
expenses “incurred for relocation costs, tuition or training costs, or job placement expenses
relating to seeking other employment, or any combination thereof[.]” CBA, Article 36A, § 3. As
discussed infra, the EISP petitioner accepted in June of 2012 had these components except that the
termination allowance was doubled to $2,200 for every “completed year,” so it was more lucrative
than required by the CBA.

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employee as part of its West Virginia operations since Mr. Stribling was first hired by respondent
in 1996. Mr. Stribling further explained that even if respondent had invoked the CBA’s Article 35,
employees whose hiring dates were prior to August 3, 2003, were protected from being laid off
pursuant to the Bell Atlantic-GTE merger agreement.

        On cross examination, petitioner asked Mr. Stribling whether employees accepting an
EISP were eligible for unemployment compensation. Mr. Stribling answered that whether an
employee received benefits was determined by each state’s law and that respondent believed it had
grounds to oppose petitioner’s application for compensation, “or we would[n’t] be sitting here.”
On re-cross examination, petitioner attempted to ask Mr. Stribling whether respondent objected to
receipt of unemployment benefits by a group of former employees who accepted an EISP in April
of 2012. However, the ALJ sustained respondent’s objection as to relevancy, ruling that the prior
case had “nothing to do with this hearing.”

        Respondent also presented the testimony of Tammy Mason, its sales supervisor at the
Clarksburg office, who confirmed that the employees who declined to accept the June of 2012
EISP are still (1) working at the Clarksburg office; (2) doing the same job; and (3) earning the
same wages. On cross examination, petitioner questioned Ms. Mason as to whether she attempted
to persuade employees to agree to the June of 2012 EISP. Ms. Mason testified that all she did was
read a briefing document to employees verbatim, which included using the phase “force
surpluses.” Respondent introduced the briefing document into evidence, and it also utilized the
words “voluntary,” “volunteer,” and “volunteering” a total of eight times.

        During petitioner’s testimony, petitioner indicated that she had a good familiarity with the
CBA by explaining that not only had she filed many grievances, but also “won them.” Petitioner
further testified that as part of the EISP packet she received, there was a question-and-answer page
that stated, in pertinent part, that if an employee terminated employment in exchange for a EISP,
“your eligibility for [unemployment] benefits are determined by state laws and state agencies” and
that “[y]ou should talk to your local unemployment office[.]” Petitioner indicated that she
interpreted that answer to mean that respondent would not oppose petitioner obtaining
unemployment benefits if she quit her job because of the EISP.

        It is undisputed that by agreeing to the June of 2012 EISP, petitioner received (1) $2,200
for every “completed year” of employment with respondent for a total of $8,800; (2) a termination
bonus of $10,000; and (3) an allowance for expenses up to $3,000. In addition, according to
petitioner’s testimony, respondent was still paying petitioner’s medical insurance until January of
2013 and petitioner was allowed to keep her 401K retirement account.

        In a decision dated October 11, 2012, an administrative law judge (“ALJ”) concluded that
petitioner was disqualified from receiving unemployment benefits because she voluntarily left her
employment without good cause involving fault on the part of respondent. The ALJ determined
that petitioner failed in her burden of proving that (1) petitioner had a well-grounded fear of
imminent layoff supported by definitive objective facts; and (2) petitioner would suffer a
substantial loss by not accepting the EISP. See W.Va. Code § 21A-6-3(11); Syl. Pt. 5, Childress v.

                                                 3

Muzzle, 222 W.Va. 129, 131, 663 S.E.2d 583, 585 (2008).3 The ALJ supported his determination
by making the following relevant findings:

       7.     [Respondent] supplied a document to [petitioner] that obtain[ed] frequently
       asked questions. This document advised each employee to talk with their local
       unemployment compensation office to determine their eligibility for benefits.

       *        *      *

       10.    Although [petitioner] would have been allowed to be [laid] off since the
       Bell Atlantic/GTE merger [agreement] did not apply to her, [respondent] not
       having exercised its rights under Article 35 of the [CBA] would have kept
       [respondent] from laying [petitioner] off.

       11.     . . . [Petitioner] did not lose her 401K [retirement account], her pension
       benefits[.]

        Petitioner appealed to the Board of Review of Workforce West Virginia (“Board”), which,
in an order dated December 6, 2012, adopted the ALJ’s decision by reference “in its entirety.” The
Board also directed that any overpayment of benefits should be collected from petitioner pursuant
to the Unemployment Compensation Law, West Virginia Code §§ 21A-10-21 to 29A-11-1.4

       Petitioner sought review of the Board’s final order from the Circuit Court of Kanawha
County pursuant to the Administrative Procedures Act, West Virginia Code §§ 29A-1-1 to
29A-7-4. In an order entered April 3, 2014, the circuit court affirmed the Board’s order,
concluding, in pertinent part, as follows:

       7.     . . . It is undisputed that there were no announced or implemented layoffs in
       connection with this EISP offer. The Court recognizes [p]etitioner’s position that
       the work environment at the Clarksburg call center was stressful and hostile[5] and

       3
         West Virginia Code § 21A-6-3(11), enacted in 2009, codified the two-part test set forth
in Syllabus Point 5 of Childress, and provides, as follows:

                In the case of an individual who accepts an early retirement
                incentive package, unless he or she: (i) Establishes a well-grounded
                fear of imminent layoff supported by definitive objective facts
                involving fault on the part of the employer; and (ii) establishes that
                he or she would suffer a substantial loss by not accepting the early
                retirement incentive package.
       4
           According to petitioner, she subsequently paid back an overpayment of $3,814.
       5
          Petitioner’s claim that a hostile work environment existed might stem from her allegation
of a difficult relationship with Supervisor Mason who petitioner asserts attempted to persuade
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       that there were rumors and news stories circulating that caused her to fear that she
       would be laid off in the future. Nevertheless, this information and [p]etitioner’s
       subjective feelings do not qualify as definitive objective facts involving fault on the
       part of the employer. Therefore, the ALJ and the [Board] did not err in relying on
       the written objective contractual terms governing this voluntary EISP offer.

       8.     Furthermore, if [p]etitioner had decided not to volunteer for the EISP
       package offered by [respondent], she could have remained employed with
       [respondent] under the same terms and conditions of employment as her
       co-workers who did not accept the voluntary EISP offer. Therefore, [p]etitioner
       was unable to establish that she would have suffered a substantial loss by not
       accepting the incentive package under the second prong of [West Virginia] §
       21A-6-3(11)(ii) and syllabus point 5 of Childress.

       Petitioner now appeals the circuit court’s April 3, 2014, order affirming the Board’s
decision that petitioner was disqualified from receiving unemployment benefits. We recognize the
following standard of review in unemployment benefit cases:

       “The findings of fact of the [Board] 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, [563,] 453
       S.E.2d 395[, 397] (1994).

Syl. Pt. 1, Childress, 222 W.Va. at 130, 663 S.E.2d at 584.

        On appeal, petitioner advances four arguments as to how she met her burden of showing
that pursuant to West Virginia Code § 21A-6-3(11) and syllabus point 5 of Childress, (1) petitioner
had a well-grounded fear of imminent layoff supported by definitive objective facts; and (2)
petitioner would suffer a substantial loss by not accepting the EISP. We address these arguments
seriatim.

        First, petitioner contends that the ALJ erred in determining that the Bell Atlantic-GTE
merger agreement would have prevented petitioner from being laid off. Respondent counters that
an erroneous statement in the “discussion” portion of the ALJ’s decision that the merger
agreement applied to petitioner constituted an oversight that did not affect the correctness of the
decision. We agree with respondent, finding that the ALJ’s error was harmless because of the
ALJ’s separate findings that properly reflected that the merger agreement did not apply to
petitioner and the ALJ’s independent and correct determination that respondent could not lay
petitioner off because respondent did not invoke Article 35 of the CBA.

       Second, petitioner asserts that she understood the question-and-answer portion of the EISP
packet to mean that respondent would not oppose her application for unemployment benefits.

employees to agree to the June of 2012 EISP.
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Respondent counters—and petitioner’s testimony supports—that all the question-and-answer page
stated was that if petitioner ceased her employment in exchange for an EISP, “[her] eligibility for
[unemployment] benefits are determined by state laws and state agencies” and “[she] should talk
to your local unemployment office[.]” We agree with respondent that its statement neither
guaranteed that petitioner would receive benefits, nor suggested that respondent would forego
opposing her application.

        Third, petitioner avers that respondent did not oppose unemployment benefits being
granted to a group of former employees who took an EISP in April of 2012. Respondent counters
that the ALJ properly sustained its objection to petitioner eliciting testimony in support of this
allegation on the ground that the prior case had “nothing to do with this hearing.” We review this
evidentiary ruling only for an abuse of discretion. See Skaggs v. Elk Run Coal Co., Inc., 198 W.Va.
51, 63, 479 S.E.2d 561, 573 (1996). We note that each case must be decided on its own facts and
Mr. Stribling testified that respondent believed it had valid reasons for opposing petitioner’s
application for benefits. Therefore, we cannot say that the ALJ abused its discretion in finding that
testimony about the earlier case would not have been relevant.

         Fourth, petitioner contends that Ms. Mason, respondent’s sales supervisor, attempted to
persuade employees to agree to the June of 2012 EISP. Respondent counters that Ms. Mason
testified that all she did was read a briefing document to employees verbatim. We note that
petitioner was able to question Ms. Mason about the document’s wording and that respondent
admitted it into evidence. “[An] ALJ’s credibility determinations are binding unless patently
without basis in the record.” Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 304, 465
S.E.2d 399, 406 (1996) (Internal quotations and citations omitted.); see also State v. Guthrie, 194
W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995). (“An appellate court may not decide the
credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of
fact.”). After a review of Ms. Mason’s testimony and the briefing document, we defer to the ALJ’s
decision to credit the testimony and reject this assignment of error.

        In conclusion, we note that if the finder of fact’s determination is plausible when reviewing
the evidence in its entirety, “[an] appellate court may not reverse even if it would have weighed the
evidence differently.” Martin, 195 W.Va. at 306, 453 S.E.2d at 408 (Internal quotations and
citations omitted.). We reject petitioner’s arguments and find that they do not undermine the ALJ’s
determination that petitioner failed to meet the applicable two-part test under West Virginia Code
§ 21A-6-3(11) and syllabus point 5 of Childress. We further determine that the ALJ’s ruling in this
matter is consistent with the purpose of the unemployment compensation fund. In Childress, we
explained that the fund constitutes an insurance program—not an entitlement program—the
purpose of which “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. Therefore, we conclude that the Board did not clearly err in adopting and
incorporating by reference the ALJ’s decision that petitioner was disqualified from receiving
unemployment benefits because petitioner voluntarily left her employment without good cause
involving fault on the part of respondent.


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      For the foregoing reasons, we find no error in the decision of the Circuit Court of Kanawha
County and affirm its April 3, 2014, order affirming the Board’s final order.

                                                                                       Affirmed.

ISSUED: May 1, 2015

CONCURRED IN BY:

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




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