IN THE SUPREME COURT OF AP PEALS OF WEST VIRGINIA September 2014 Term

_______________ No. 13-1086

_______________ THE BOARD OF EDUCATION OF WEBSTER COUNTY; RUSSELL FRY, Acting Executive Di rector, WorkForce West Virginia; JACK CANFIELD, Chairman, Board of Review;

GINO COLUMBO, Member, Board of Review; LES FACEMYER, Member, Board of Review, Respondents Below, Petitioners

v. DAWN J. HANNA, Petitioner Below, Respondent

___________________ _____________________ ____________________ Appeal from the Circuit Court of Kanawha County The Honorable Tod J. Kaufman, Judge Civil Action No. 13-AA-64 REVERSED

___________________ _____________________ ____________________ Submitted: September 17, 2014 Filed: October 2, 2014 Jill E. Hall, Esq. Bowles Rice, LLP Charleston, West Virginia Counsel for the Petitioners Dan L. Hardway, Esq. Dan Hardway Law Office Cowen, West Virginia Counsel for the Respondent

JUSTICE KETCHUM delivered th e Opinion of the Court. 

### FILED October 2, 2014 released at 3:00 p.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIAi SYLLABUS BY THE COURT
1. “The findings of fact of the [Board of Review of WorkForce West Virginia] are entitled to substantial defere nce 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 ju dicial review by the court is de novo .” Syl. Pt. 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994). 2. “The word voluntarily as used in W.Va. Code , 21A–6–3(1) means the free exercise of th e will.” Syl. Pt. 3, Childress v. Muzzle , 222 W.Va. 129, 663 S.E.2d 583 (2008). 3. “The term ‘good cause’ as used in W.Va. Code , 21A–6–3(1) means cause involving fault on the part of the em ployer sufficient to justify an employee’s voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.” Syl. Pt. 4, Childress v. Muzzle , 222 W.Va. 129, 663 S.E.2d 583 (2008).1 Justice Ketchum: This is an appeal by the Board of Education of Webster County (“School Board”) from an order of th e Circuit Court of Kanawha County. The circuit court reversed the Board of Review of WorkForce West Virginia (“WorkForce”) and ruled that Dawn J. Hanna (“Hanna”) was entitled to unemployment compensation benefits under W.Va. Code § 21A-6-3(1) [2012]. The School Bo ard appeals the circuit court’s order, contending that Hanna is disqualifie d from receiving unemployment compensation benefits because she voluntarily quit her job. Upon review of the record, we reverse the circuit court’s order and reinstate WorkForce’ s determination that Hanna is disqualified from receiving unemployment compensation benefits.

I. FACTUAL AND PROCED URAL BACKGROUND A. Hanna’s Employment with the School Board Hanna worked for the Sc hool Board as a teacher from August 1989 until she resigned in December 2012. During the 2011-2012 school-year, she supervised a student cookbook fundraiser. As supervis or, Hanna was to s ubmit the fundraiser proceeds to the school. At the beginning of the 2012-2013 school-year, it was discovered that $1,005 of the fundraiser proceeds were missing. The School Board conducted an investigation into the matter and alerted the pr osecuting attorney’s o ffice. An assistant prosecutor conducted a sepa rate investigation into the missing funds.2 Upon Hanna’s return from a two-m onth sick-leave, on December 10, 2012, the principal at Hanna’s school called her to his office where a state trooper was waiting to speak with her. The state trooper ques tioned her about the missing money, and Hanna responded by denying that she took the money. Four days later, the assistant prosecu tor requested that Hanna meet with her. At the meeting, Hanna learned th at she would be ch arged with felony embezzlement, but that she c ould avoid prosecuti on by resigning from her position and paying back the missing funds. The assistant prosecutor stated that she gave Hanna these options because the School Boar d preferred that Hanna not be prosecuted, but rather, that she resign. The assistant pros ecutor gave Hanna four days to decide whether or not to resign. Pursuant to her discussion with the assistant prosecutor, Hanna resigned from her position four days later. She descri bed her decision to resign as follows: “I was given this option by [the assist ant prosecutor] . . . I chose to quit.” Hanna thereafter applied for unemployment benefits. B. Procedural History On January 10, 2013, a deputy with WorkForce’ s Unemployment Compensation Division determined that Hanna was disqualified from receiving unemployment compensation benefits under W.Va. Code § 21A-6-3(1). The statute states, in pertinent part, that employees are disqualified from receiving unemployment compensation benefits when they leave work “voluntarily without good cause involving fault on the part of the employer[.]”3 Hanna appealed the disqualification. Thereafter, an administrative law judge took Hanna’s testimony at a telephonic hearing. The administrative law judge affirmed the deputy’s decisi on on the ground that: “If the cl aimant had not resigned her employment, [she] could have remained empl oyed as a teacher.” The administrative law judge also determined that instead of contesting the charges against her, she voluntarily chose to resign in order to avoid felony pr osecution. The WorkForce Board of Review adopted the administrativ e law judge’s decision. Hanna appealed WorkForce’s decision to the Circuit Court of Kanawha County. The circuit court reversed WorkForce’s determ ination that Hanna resigned voluntarily. Instead, it found that Hanna ac ted under duress and that her decision to resign was not voluntary. The circuit court’s discussion on the issue of voluntariness is as follows: “[Hanna] was under duress with on ly four days to make a decision without counsel.” The circuit court also found that th e School Board’s involvement in Hanna’s duress constituted good cause involving fault on the part of her employer. The School Board now appeals the circuit court’s order, asserting that the court failed to give substan tial deference to its finding that Hanna’s resignation was voluntary.

II. STANDARD OF REVIEW This Court has held: “The findings of fact of th e [Board of Review of WorkForce West Virginia] are entitled to subs tantial deference unless a reviewing court4 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). Unemployment compensation claims are to be libera lly construed in favor of employees due to the remedial nature of the unemployment compensation statutes. Childress v. Muzzle , 222 W.Va. 129, 133, 663 S.E.2d 538, 587 ( 2008). However, “[I]t is also important for the Court to protect the unemployment compensation fund against claims by those not entitled to the benefits of the Act.” Id. , 222 W.Va. at 133, 663 S.E.2d at 587. Likewise, “[W]e believe that the ba sic policy and purpose of the Act is advanced . . . when benefits are denied to those for whom the Act is not in tended to benefit[.]” Id. , 222 W.Va. at 133, 663 S.E.2d at 587.

III. ANALYSIS Hanna argues that she did not volu ntarily resign from her position at the School Board because she was acting under dure ss. “Voluntarily” as used in the context of qualification for unemployment benefits means “the free exer cise of the will.” Syl. Pt. 3, Childress , 222 W.Va. 129, 6 63 S.E.2d 583. The administrative law judge noted in his opinion th at, “[I]f the claimant had not resigned her employment, the claima nt could have remained employed as a teacher.” The administrative la w judge also noted that Hann a resigned in or der to avoid felony prosecution, instead of contesting the charges against her. WorkForce’s finding as5 to Hanna’s voluntariness is s upported by Hanna’s testimony stating, “I was given the option to quit or be discharged. . . . I chose to quit.” Hanna argues that WorkForce was cl early wrong because she was acting under duress when she resigned. A person is under duress when he or she is “prevented from exercising his free will by re ason of threats made by the other, and that the contract is obtained by reason of such fact.” Mach. Hauling, Inc. v. Steel of W. Va. , 181 W.Va. 694, 698-99, 384 S.E. 2d 139, 143-44 (1989). Hanna therefore asserts that the circuit court was correct to substitute its ow n factual findings for WorkForce’s. Our law is clear that the issue of wh ether a decision was made under duress is a question of fact, not law. Mach. Hauling , 181 W.Va. at 698, 38 4 S.E. 2d at 143 (“[T]he question of duress is on e of fact[.]”); Syl. Pt. 2, Bank of Clinchburg v. Carter , 101 W.Va. 669, 133 S.E. 370 (1926) (“The defense of dur ess is ordinarily a question for the jury, to be determined fro m all the facts and circumstances in the particular case.”); Syl. Pt. 3, Carroll v. Fetty , 121 W.Va. 215, 2 S.E.2d 521 (1 939) (“[D]uress . . . generally presents a question of fact for the jury.”); Arnold v. Turek , 185 W.Va. 400, 407-08, 407 S.E.2d 706, 713-14 (1991) (quoting Syl. Pt. 3, Carroll , 121 W.Va. 215, 2 S.E.2d 521). Therefore, the circuit court’s order subs tituting its judgment fo r WorkForce’s cannot stand unless WorkForce was clearly wrong. See Syl. Pt. 1, Childress , 222 W.Va. 129, 663 S.E.2d 583. We cannot say that WorkForce was clearly wrong in finding that Hanna resigned without duress. In f act, the record directly contra dicts the circuit court’s claim that Hanna had only four days to seek co unsel, which was based on the fact that the6 assistant prosecutor gave her four days to d ecide whether to resign. Hanna already knew about the potential charges against her when she met w ith the assistant prosecutor due to her prior encounter with the state troo per in the principal’s office. Due to the accusations against her, Ha nna could ha ve been charged with felony embezzlement. Instead, the assistant prosecutor ga ve her an opportunity to avoid felony prosecution. The School Board was unde r no duty to provide this o pportunity, and Hanna accepted it. 1 Hanna is arguably in a better position now due to the assistant prosecutor’s offer. 2 Based on the record, we cannot say that WorkForce was clearly wrong in finding that Hanna resigned voluntarily and wi thout duress, and we fi nd that the circuit court erred by substituting its judgmen t for that of the fact finder. See Syl. Pt. 1, Darby v. Kanawha Cnty. Bd. of Educ., 227 W.Va. 525, 711 S.E.2d 595 (2011) (“Since a reviewing court is obligated to give deference to fact ual findings rendered by an administrative law judge, a circuit court is not permitted to subs titute its judgment for that of the hearing

1 See e.g. , Seacrist v. City of Cottage Grove , 344 N.W.2d 889, 891 (Minn. Ct. App. 1984) (“[W]hen an employee, in th e face of allegations of misconduct, chooses to leave his employment rather than exercise his right to have the allegations determined, such action supports a finding that the em ployee voluntarily left his job without good cause.”).

2 For example, a felony conviction w ould have rendered Hanna ineligible for retirement benefits. See W.Va. Code § 5-10A-1 [1976] (“[H]onorable service is a condition to receiving any . . . benefit under a retirement plan.”); W.Va. Code § 5-10A2(f) [2008] (“‘Less than honorable service’ means: . . . (2 ) Conviction of a participant or former participant of a felony for conduct relate d to his or her office or employment[.]”).7 examiner with regard to factual determinations .”). Therefore, we affirm WorkForce in its finding that Hanna resigned voluntarily. 3

IV. CONCLUSION We cannot say that WorkForce was clear ly wrong when it found that Hanna resigned voluntarily. Therefore, the circ uit court erred in reversing WorkForce’s findings. We reverse the circuit court’s order and reinstate WorkForce’s decision, determining that Hanna is disqualified from receiving unemployment compensation benefits. Reversed.

3 Hanna also argues that the School Bo ard’s involvement in her decision to resign constitutes good cause in volving fault on the part of her employer. Because the Board was not clearly wrong in finding that Hanna made her decision without duress, we decline to consider that argument. See Syl. Pt. 1, Amherst Coal Co. v. Hix , 128 W.Va. 119, 35 S.E.2d 733 (1945) (“ Customary working conditions no t involving deceit or other wrongful conduct on the part of the employer are not a sufficient reason for an employee to leave his most recen t work voluntarily[.]”).