STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Roy A. Higginbotham, FILED Plaintiff Below, Petitioner 

November 10, 2016 

vs) No. 15-1211 (Kanawha County 14-AA-89) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Charleston Area Medical Center, Inc., 

Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioner Roy A. Higginbotham, by counsel Keith A. Jones, appeals the November 18, 

2015, order of the Circuit Court of Kanawha County affirming the decisions of the 

Administrative Law Judge (“ALJ”) and the Board of Review (“BOR”) finding that petitioner 

was indefinitely disqualified from receiving unemployment compensation benefits until he had 

returned to covered employment and had worked therein for at least thirty working days. 

Respondent Charleston Area Medical Center, Inc. (“CAMC”), by counsel Howard G. Salisbury, 

Jr., filed its response, to which petitioner submitted a reply. 

This 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. 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 as a dietary clerk from April 15, 2013, until he was 

discharged from employment on February 17, 2014.1 Respondent has a tardiness policy and 

progressive discipline policy, both of which are set out in an employee handbook; the handbook 

is available to employees on respondent’s internal computer network. When petitioner was hired, 

he was notified of the existence of the handbook and how to access the same. Between May 22, 

2013, and February 17, 2014, petitioner received counseling and warnings for his tardiness, 

including the completion of a “coaching form,” a verbal warning, written warnings, and 

eventually discharge. 2 According to the record before the circuit court, petitioner was tardy for 

1 Petitioner testified before the ALJ that he informed respondent he would be relying on 

public transportation to get to work. 

2 The record includes an “Employee Coaching Documentation Form” dated May 22, 

2013, for tardiness with a summary of corrective plan of action to arrive to work at his scheduled 

time; an “Employee Attendance/Tardy Discipline Form” dated July 12, 2013, which shows that 

(cont. . . .) 

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work at least nineteen times during his short employment with respondent.3 Following his 

termination, petitioner filed a claim for unemployment compensation benefits. 

On March 14, 2014, a Workforce West Virginia Deputy entered a decision finding that 

petitioner was indefinitely disqualified from receiving unemployment compensation benefits 

until he had returned to covered employment and had worked therein for at least thirty working 

days. The BOR affirmed that decision by order entered June 6, 2014. Petitioner appealed that 

decision to the circuit court, and on November 18, 2015, the circuit court entered its order 

affirming the decisions below, concluding that the findings of fact made by the ALJ and adopted 

by the BOR were fully supported by the weight of the reliable and probative evidence and were 

not clearly wrong. 

In its order, the circuit court found that a claimant who is otherwise eligible to receive 

unemployment compensation benefits may be disqualified from receiving such benefits if he is 

discharged due to misconduct. It also found that while a discharge for misconduct carries a sixweek disqualification, an employee discharged for gross misconduct remains disqualified until 

he or she has returned to covered employment and worked in such employment for at least thirty 

days. The circuit court concluded that the many recurrent instances of tardiness over a relatively 

short period of employment provide sufficient indicia of willfulness, wantonness, carelessness, 

he was issued a verbal warning for seven tardies (with the dates listed) and that “[i]t has been 

discussed that future occurrences related to this disciplinary action will result in: Written 

Warning Three suspensions (including 2nd written warnings) within a four (4) year time period 

will result in discharge” (emphasis in original); an “Employee Attendance/Tardy Discipline 

Form” dated September 26, 2013, for two additional tardies, which also states that three 

suspensions within a four year time period will result in discharge; an “Employee 

Attendance/Tardy Discipline Form” dated December 8, 2013, for four tardies, which also 

contains the discharge language; and a “CAMC Health System Attendance and Tardy Discipline 

Form” dated February 17, 2014, with four tardy dates listed, which states that “[i]f the employee 

has two (2) occasions of absence/tardy within twelve (12) months of the last corrective action, 

the last corrective action will be repeated. It has been discussed that future occurrences related to 

this disciplinary will result in: Select next corrective action.” On February 17, 2014, a Human 

Resource Associate completed a “Personnel Termination Notice” for petitioner stating that 

petitioner was terminated under CAMC’s progressive discipline policy for attendance, citing the 

verbal warning, written warning, second written warning, and termination due to more than four 

instances of being tardy. He further stated that “Roy was granted more occasions of tardy than 

what was required by policy in an attempt to get Roy on the right track.” That form also indicates 

that petitioner had received written warning that the violation was a ground for discharge but that 

he did not receive such verbal warning. 

3 Petitioner points to an incident on July 2, 2013, wherein he reported to CAMC’s 

Employee Health Department but the department would not release him to return to work (due to 

an eye issue) for fear that he would infect other employees. Therefore, he claims he was unable 

to report to work on time and was charged with two tardies since he was over two hours late to 

work. 

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or negligence to constitute misconduct. The circuit court also found that petitioner’s pattern of 

conduct in the form of recurrent and excessive tardiness constituted misconduct within the 

meaning of the unemployment compensation statute and that such misconduct constituted gross 

misconduct under the statute. It, therefore, adopted the findings of the ALJ, which were affirmed 

by the BOR. Petitioner appeals from that order. 

“The findings of fact of the Board of Review of the West Virginia 

Department of Employment Security 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). 

Syl. Pt. 3, Smittle v. Gatson, 195 W. Va. 416, 465 S.E.2d 873 (1995). 

In the instant matter, petitioner asserts three assignments of error, though he frames his 

arguments in a different manner. Therefore, this Court will address the actual arguments set forth 

by petitioner in his brief. The first such argument is that the circuit court erred in affirming the 

BOR and ALJ because respondent failed to present sufficient evidence that, under the facts of 

this case, being tardy constituted simple misconduct under West Virginia unemployment 

compensation law. He argues that the purpose of the unemployment compensation system is to 

protect the unemployed, contending there were no allegations of “gross misconduct” which 

would disqualify him from receiving unemployment compensation benefits pursuant to West 

Virginia Code § 21A-6-3. He further asserts that respondent simply relies on petitioner’s 

tardiness, confusing disciplinary forms, and a part of respondent’s employment policies 

petitioner claims he had never seen. Petitioner’s argument is premised on his contention that 

there was no evidence presented that when he was tardy he acted with willful and wanton 

disregard of respondent’s interest. However, he concedes that his tardiness may have amounted 

to “unsatisfactory conduct.” 

West Virginia Code § 21A-6-3 specifically states that 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.” Id. The first written warning respondent issued to petitioner, which petitioner 

does not dispute signing or receiving, specifically states that three suspensions, including second 

written warnings, within a four-year time period will result in discharge; the second written 

warning contains the same language. These warnings listed the dates of numerous tardies as the 

basis for the same. The third written warning was dated February 17, 2014. On that same date, an 

associate from respondent’s human resources division completed a personnel termination notice 

for petitioner for attendance, citing the verbal warning, written warning, second written warning, 

and termination due to more than four instances of being tardy. Petitioner appears to contest only 

a few incidents of tardiness from the nineteen identified by respondent, so it is clear that he does 

not contest being tardy on more than four occasions. Contrary to petitioner’s contention, the 

statute does not contain any language requiring an employer to produce evidence of intent with 

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regard to “any other gross misconduct.” Under the clear language of the statute, neither the 

circuit court nor the administrative bodies before it erred in finding that petitioner was 

indefinitely disqualified from receiving unemployment compensation benefits until he had 

returned to covered employment and had worked therein for at least thirty working days. 

Petitioner’s second argument is that the circuit court erred in denying him unemployment 

benefits because he was not provided with due process under West Virginia unemployment 

compensation law. He asserts that even if there had been sufficient evidence that the tardiness 

constituted simple misconduct, the BOR and ALJ erred in finding that respondent provided 

petitioner with the clear written notice required by law that further tardiness could result in 

termination. Petitioner is critical of respondent’s presentation of the employee handbook, arguing 

that the handbook could only be accessed on the internal computer network that he could not 

access while on duty. He contends that the lack of access to the handbook and the confusing 

forms show that the clear warning mandated by the due process requirements of West Virginia 

unemployment compensation law was not provided to petitioner. 

The circuit court’s November 18, 2015, order states that in reaching its conclusion it 

considered the petition for review, the documentary record consisting of the transcript of the 

hearing before the ALJ and exhibits admitted into evidence at that hearing, and the briefs of 

counsel. The circuit court listed the warnings, both verbal and written, provided to petitioner 

throughout his employment with respondent and adopted the findings of the ALJ, which were 

also adopted by the BOR. The ALJ’s order found that petitioner was clearly informed that 

continued violations of respondent’s tardiness policy would result in discharge from 

employment. As this Court previously recognized, “[t]he legislature, by requiring notice in 

writing, obviously intended to interject minimal standards of due process into the procedure 

where acts of ordinary misconduct can trigger full disqualification for unemployment 

compensation.” Federoff v. Rutledge, 175 W. Va. 389, 395, 332 S.E.2d 855, 860 (1985). While 

West Virginia Code § 21A-6-3 has been amended since Federoff, there is no dispute that 

respondent issued written warnings to petitioner advising him that if his tardiness continued he 

would be terminated from his job. Petitioner also does not allege that respondent prevented him 

from accessing the handbook aside from the hours he was required to perform his job duties. 

Because petitioner received written notice that he would be terminated if he continued to violate 

respondent’s tardiness policy and respondent’s handbook set forth its progressive discipline 

policy, we find that petitioner has failed to show that he did not receive due process in the denial 

of unemployment compensation benefits relative to his employment with respondent. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: November 10, 2016 

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CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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