Fairfax County Government v. Victoria Monroe ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and O’Brien
UNPUBLISHED
Argued at Alexandria, Virginia
FAIRFAX COUNTY GOVERNMENT
MEMORANDUM OPINION* BY
v. Record No. 1628-14-4 JUDGE TERESA M. CHAFIN
APRIL 14, 2015
VICTORIA MONROE
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Jamie M. Greenzweig, Assistant County Attorney (David P.
Bobzien, County Attorney; Peter D. Andreoli, Jr., Deputy County
Attorney; Karen K. Gibbons, Senior Assistant County Attorney;
Office of the County Attorney, on briefs), for appellant.
David B. Vermont (Aschraft & Gerel, LLP, on brief), for appellee.
The Fairfax County Government (“the employer”) appeals a decision of the Virginia
Workers’ Compensation Commission (“the commission”) awarding temporary total disability
and medical benefits to Victoria Monroe (“Monroe”) compensating her for a lower back injury
she sustained at work during a physical altercation with a coworker. On appeal, the employer
contends that the commission erred in finding that Monroe: 1) sustained a compensable injury by
accident, 2) sustained an injury that arose out of and in the course of her employment, 3) was not
guilty of willful misconduct, and 4) did not willfully breach the employer’s workplace rules and
regulations. For the reasons that follow, we affirm the commission’s decision.
I. BACKGROUND
“On appeal, we view the evidence and all reasonable inferences that may be drawn from
that evidence in the light most favorable to [Monroe], the prevailing party below.” Stillwell v.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Lewis Tree Service, Inc., 47 Va. App. 471, 474, 624 S.E.2d 681, 682 (2006). So viewed, the
evidence established that Monroe was employed as the Wildlife Biologist for the Animal
Services Division of the Fairfax County Police Department. Among other work duties, Monroe
managed several programs aimed at controlling the deer population in Fairfax County. As a
wildlife biologist, Monroe was a “civilian member” of the police department rather than a trained
police officer.
On April 7, 2012, Monroe fractured two vertebrae in her back when she fell from a ladder
while painting her mother’s house. As a result of these non-work-related injuries, Monroe was
unable to work for approximately four months. During this time period, many of Monroe’s
duties concerning the deer management programs were reassigned to one of her coworkers,
Sergeant Earit Powell (“Powell”). Monroe became concerned and frustrated by Powell’s lack of
communication with her concerning the status of these programs during the period of time that
she could not work. This frustration culminated with a series of emails from Monroe to both
Powell and her supervisors in which she expressed her concerns about Powell’s hostility toward
her and demanded better communication from him and other members of her department.1
Monroe returned to light-duty work on August 1, 2012. Although Monroe anticipated an
eventual return to full-duty work, she was assigned to work from the county’s animal shelter
during her period of light-duty employment rather than the wildlife trailer where she normally
worked. While some of the employees who worked at the animal shelter had permanent desks,
others worked in cubicles in a small shared office. These cubicles were arranged in rows, and a
space of approximately three feet separated these rows and formed a corridor between them.
1
This was not the first source of tension between Monroe and Powell. Powell had
previously insulted Monroe’s baking skills on the first day of her employment, and reported her
for the improper use of a county vehicle when Monroe actually had permission to use the vehicle
in question.
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On December 14, 2012, Monroe and Powell were assigned to work in cubicles that were
positioned directly across from each other. After Powell arrived at the animal shelter and sat
down at the desk of his cubicle, Monroe asked Powell from her own cubicle about a change in
the type of locks used in the deer management programs. Monroe described Powell’s response
to her question as “rude” and “dismissive,” and an argument ensued between them concerning
the locks and chain of command in the Animal Services Division. During the argument, both
Monroe and Powell raised their voices and rolled the desk chairs in which they were sitting
closer to the entrances of their cubicles.
At some point, Monroe asked Powell to “use professional courtesy” and talk to her about
the locks. When Powell continued to argue with her, Monroe began to ask Powell why he was
“acting like a jerk.” Monroe initially stopped her question before she reached the term “jerk,”
but she completed it when Powell encouraged her to continue. Powell then called Monroe a
“bitch.” 2 As Monroe rolled her desk chair into the corridor separating the cubicles following
this remark, her chair became unbalanced and she briefly touched Powell’s knee with her hand.
In response, Powell pushed Monroe back in her chair with both hands and told her to never touch
him again.
Powell weighed approximately 325 pounds at the time of this incident while Monroe
weighed approximately 115 pounds. Monroe’s chair quickly rolled about one foot away from
Powell when he pushed her, and her lower back struck the back of her chair. Although Monroe
did not immediately feel any pain in her back following the incident, she began to experience
lower back pain the next day. Monroe was diagnosed with a lumbar strain/sprain that was
2
By Powell’s own testimony, Monroe said, “you’re a, you’re a, and I was like, I’m a
what, Vicki? She said, you’re being a jerk. And I said, well, you’re being a bitch and just
remember you started this name calling roller coaster so you can stay on it if you want to.”
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caused by the altercation with Powell, and this strain/sprain resulted in the aggravation of her
pre-existing back condition. She was completely unable to work during the periods of December
17-31, 2012, and January 14-30, 2013. Monroe returned to light-duty work on January 31, 2013,
completed a work-hardening program, and eventually returned to full-duty work on June 10,
2013.
Monroe reported the December 14, 2012 incident to the Internal Affairs Division of the
Fairfax County Police Department. Following an investigation, the division found that both
Monroe and Powell had violated the department’s human relations policy through their
unprofessional conduct and that Powell did not assault Monroe. The employer denied Monroe’s
claim for workers’ compensation benefits concerning the lower back injury she sustained on
December 14, 2012 based in part on the conclusion of the Internal Affairs investigation. Among
other grounds, the employer argued that Monroe’s injury was the result of her willful misconduct
and violation of workplace rules requiring employees to conduct themselves professionally.
The deputy commissioner presiding over Monroe’s initial compensation hearing
disagreed with the employer’s contentions. He discounted Powell’s testimony describing the
incident based on his demeanor at the hearing, and concluded that Powell angered easily based
on both his demeanor and the testimony of another coworker. The deputy commissioner also did
not believe Powell when he testified that he pushed Monroe away from him because he feared
that she would physically harm him, noting that Powell’s “apprehension of harm at the hands of
someone less than half his size is unconvincing, especially [in light of] his military and law
enforcement training.” The deputy commissioner found that Monroe accidentally touched
Powell’s knee when she lost her balance, and concluded that she did not willfully violate any
workplace rules or otherwise commit misconduct. Specifically, the deputy commissioner noted
that Monroe’s behavior reflected “carelessness and negligence,” but held that “her behavior, as
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unprofessional as it was, [did] not show a wrongful intent to disregard a specific safety rule,
regulation, or company policy.”
When the employer requested a review of the deputy commissioner’s decision, the full
commission unanimously affirmed the decision.3 The commission held that Monroe’s injury
arose out of her employment because the incident occurred as the result of her attempt to speak
with Powell about a work-related matter. The commission rejected the employer’s contention
that Monroe was the aggressor in the altercation, and found that she did not willfully violate a
workplace rule or willfully commit misconduct. The employer appealed the commission’s
decision to this Court.
II. ANALYSIS
Although the employer presents four assignments of error on appeal, the employer’s first
two assignments of error essentially address the same issue. Similarly, the employer’s third and
fourth assignments of error address related issues that may be analyzed together. In its first two
assignments of error, the employer contends that Monroe’s injuries were not caused by an
accident and did not arise out of her employment because she was the aggressor in her altercation
with Powell and therefore personally responsible for the assault.4 In its third and fourth
3
The commission also incorporated the deputy commissioner’s recitation of the facts of
the case into its opinion and adopted his factual findings as its own.
4
The employer’s first two assignments of error state verbatim: “1) the commission erred
in finding that the Claimant sustained a compensable injury by accident; [and] 2) the commission
erred in finding that the Claimant’s alleged injury arose out of and in the course of employment.”
While these assignments of error could be construed to also challenge whether Monroe was
actually injured during the altercation with Powell and the extent of any injuries she suffered, the
employer did not present any argument concerning these issues in the briefs it filed with this
Court or in oral argument. As the employer has limited its argument concerning these
assignments of error to the issue of whether or not Monroe was barred from receiving workers’
compensation benefits because she was the aggressor in the altercation, we limit our analysis to
that issue and deem any other issues that may be encompassed in the first two assignments of
error waived by the employer. See Rule 5A:20(e) (“The opening brief of appellant shall contain
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assignments of error, the employer argues that Monroe’s unprofessional behavior constituted
willful misconduct and a willful violation of workplace rules that barred her from receiving
workers’ compensation benefits. Upon reviewing this case, we conclude that the commission
did not err by holding that Monroe’s lower back injury arose out of her employment and that she
did not willfully violate a workplace rule or otherwise willfully commit misconduct.
A. MONROE’S INJURY AROSE OUT OF HER EMPLOYMENT
The employer contends that Monroe’s lower back injury did not arise out of her
employment because she was the aggressor in her altercation with Powell and therefore
personally responsible for her injury. The question of whether an accident arises out of
employment presents a mixed question of law and fact. Stillwell, 47 Va. App. at 477, 624 S.E.2d
at 683. While we review the ultimate legal issue de novo, “the commission’s factual findings are
conclusive and binding on this Court when those findings are based on credible evidence.” City
of Waynesboro v. Griffin, 51 Va. App. 308, 312, 657 S.E.2d 782, 784 (2008); see also Code
§ 65.2-706(A) (“an award of the commission . . . shall be conclusive and binding as to all
questions of fact”). “In determining whether credible evidence exists, the appellate court does
not retry the facts, reweigh the preponderance of the evidence, or make its own determination of
the credibility of the witnesses.” Wagner Enters. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991). “The fact that there is contrary evidence in the record is of no consequence if
there is credible evidence to support the commission’s finding.” Id.Injuries sustained by employees during willful and intentional assaults are compensable
under the Virginia Workers’ Compensation Act in certain circumstances. “[W]here a claimant
has been injured while fighting with a co-worker, that injury ‘arises out of’ the claimant’s
. . . the argument (including principles of law and authorities) relating to each assignment of
error.”).
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employment only if two elements are satisfied: (1) the fight was not personal, but rather, was
related to the manner of conducting business, and (2) the claimant was not responsible for the
fight.” Stillwell, 47 Va. App. at 481, 624 S.E.2d at 685. A claimant is not entitled to workers’
compensation benefits when he or she incurs injuries during a fight for which he or she is “‘in
fault as the aggressor.’” See id. at 478, 624 S.E.2d at 684 (quoting Farmers Mfg. Co. v. Warfel,
144 Va. 98, 101, 131 S.E. 240, 241 (1926)).
The rationale for denying benefits to the aggressor is that, “in such
cases the proximate cause of the injury is not the employment, but
the fault of the claimant.” In other words, if an employee is at fault
in causing a fight and is injured during the course of that fight,
those injuries do not “arise out of” the aggressor’s employment
because the injuries were not proximately caused by the
employment, but rather, by “the fault of the claimant.”
Id. (quoting Farmers, 144 Va. at 101, 131 S.E.2d at 241). The issue of whether an employee was
the aggressor or otherwise responsible for a fight is a question of fact. See id. at 483 n.6, 624
S.E.2d at 686 n.6.
In the present case, credible evidence supported the commission’s decision that the
altercation between Monroe and Powell was work-related. While some degree of personal
animosity existed between Monroe and Powell before the December 14, 2012 incident, the
commission correctly noted that “[t]he incident was not purely personal.” The altercation began
when Monroe asked Powell about a work-related matter. Monroe asked Powell about a change
in the type of locks used in the deer management programs, Powell replied in a rude or
dismissive manner, and an argument ensued that culminated with Powell pushing Monroe away
from him. Therefore, the physical contact stemmed directly from the discussion of a
work-related issue, the change of the type of locks used in the deer management programs that
Powell helped administer while Monroe was injured and unable to work.
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Moreover, credible evidence supported the commission’s decision that Monroe was not
the aggressor in the December 14, 2012 incident. The commission held that Monroe did not
willfully instigate the altercation with Powell. As previously discussed, the altercation began
when Monroe simply attempted to discuss a work issue. When Powell responded in a rude
manner and refused to discuss the issue with her, Monroe became frustrated and insinuated that
Powell was “acting like a jerk.” She attempted to stop her comment, however, before she
referred to Powell unprofessionally and only completed her sentence when Powell encouraged
her to do so. In this specific context, Monroe’s comments cannot be viewed as particularly
aggressive behavior. See also Farmers, 144 Va. at 103, 131 S.E. at 241 (citing Knocks v. Metal
Package Corp., 231 N.Y. 78, 131 N.E. 741 (1921), and noting that the use of “irritating words”
by a coworker did not justify an assault in that case).
Furthermore, the commission expressly held that the physical contact between Monroe
and Powell preceding the assault in question was accidental rather than intentional. The
commission found that Monroe accidentally touched Powell’s leg when she rolled her chair
toward him after he called her a “bitch.” 5 Monroe testified that she only briefly touched
Powell’s leg with her hand when she lost her balance in the chair and that she did not intend to
assault Powell. The deputy commissioner disbelieved Powell when he testified that he feared
that Monroe intended to harm him, and the full commission adopted this credibility
determination.
As previously stated, we are bound by the commission’s factual findings and credibility
determinations when those findings are supported by credible evidence, see Wagner, 12
5
The commission did not decide whether Powell escalated the argument by calling
Monroe a “bitch” in response to her relatively mild comment implying that he was a “jerk,” and
therefore we reach no conclusions concerning that specific issue.
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Va. App. at 894, 407 S.E.2d at 35, and we find that credible evidence supported the
commission’s conclusions regarding the physical contact between Monroe and Powell. The
present case only involved very slight physical contact,6 and the commission could reasonably
infer that Monroe’s brief and minor contact with Powell was accidental rather than intentional.
Monroe only touched Powell for a few seconds, and she did not engage in any other physical
contact with him after he pushed her. Additionally, the commission could reasonably infer that
Monroe likely did not intend to instigate a physical altercation with a coworker who was
approximately three times larger than her who also had both military and police combat training.
We hold that credible evidence supported the commission’s determination that Monroe
was not the aggressor in the work-related altercation that she had with Powell on December 14,
2012. The altercation began when Monroe asked Powell a legitimate question about a work
issue, her unprofessional comments were encouraged by Powell, and any physical contact that
Monroe had with Powell before he pushed her away from him was accidental. Accordingly, the
commission did not err by concluding that the lower back injury that Monroe sustained during
this incident arose from her employment.
B. MONROE DID NOT WILLFULLY COMMIT MISCONDUCT OR WILLFULLY
VIOLATE A WORKPLACE RULE
On appeal, the employer contends that the commission erred in concluding that Monroe
did not willfully commit misconduct or breach its rules and regulations requiring professional
conduct in the workplace. The employer argues that Monroe’s unprofessional behavior during
the December 14, 2012 altercation with Powell violated its workplace rules and constituted
6
The physical contact in this case was much less extreme than the contact addressed in
Stillwell, 47 Va. App. at 682-83, 624 S.E.2d at 475-76 (brawl between two tree service
employees), and Farmers, 144 Va. at 100, 131 S.E. at 240 (one employee murdered another with
an iron bar).
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willful misconduct. Because Monroe’s injuries were caused by this alleged willful misconduct
and breach of workplace rules, the employer claims that Code § 65.2-306 bars her from receiving
workers’ compensation benefits. We disagree with the employer’s argument.
Code § 65.2-306(A) provides, in pertinent part, that “[n]o compensation shall be awarded
to the employee or his dependents for an injury or death caused by: [t]he employee’s willful
misconduct . . . [or t]he employee’s willful breach of any reasonable rule or regulation adopted
by the employer and brought, prior to the accident, to the knowledge of the employee . . . .”7
Code § 65.2-306(A)(1) and (5).
“To prevail on the defense of a willful violation of a safety rule,
[the] employer must prove that: (1) the safety rule was reasonable;
(2) the rule was known to the employee; (3) the rule was
promulgated for the benefit of the employee; and (4) the employee
intentionally undertook the forbidden act.”
Layne v. Crist Elec. Contractor, Inc., 64 Va. App. 342, 350, 768 S.E.2d 261, 264 (2015) (quoting
Owens Brockway & Nat’l Union Fire Ins Co. v. Easter, 20 Va. App. 268, 271, 456 S.E.2d 159,
161 (1995)).
Whether the rule is reasonable and applies to the situation from
which the injury results, and whether the claimant knowingly
violated it, is a mixed question of law and fact . . . [b]ut the
questions of whether an employee is guilty of willful misconduct
and whether such misconduct is a proximate cause of the
employee’s accident are issues of fact.
Owens Brockway, 20 Va. App. at 271-72, 456 S.E.2d at 161 (emphasis added); accord Layne, 64
Va. App. at 350, 768 S.E.2d at 264-65 (quoting Mills v. Virginia Elec. & Power Co., 197 Va.
547, 551, 90 S.E.2d 124, 127 (1955)).
7
Although Code § 65.2-306(A)(2) also provides that no compensation shall be awarded
to an employee for an injury caused by that employee’s attempt to injure another, the employer
does not argue that this provision of Code § 65.2-306 prohibits Monroe from receiving workers’
compensation benefits.
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The rules concerning workplace professionalism at issue in the present case were set
forth in Fairfax County’s Standards of Conduct, a set of rules applicable to all Fairfax County
employees, and a General Order of the Fairfax County Police Department that outlined an
additional series of regulations applicable to police officers. A section of the Standards of
Conduct entitled “Personal Behavior and Conduct” specifically required employees to
“[d]emonstrate professionalism” and “[e]xercise courtesy, respect and tact when dealing with
fellow employees.” The Standards of Conduct also prohibited employees from “[t]hreatening,
assaulting, intimidating, or harassing another employee,” “[u]sing obscene language toward
fellow employees,” and otherwise “[e]ngaging in rude or unprofessional behavior or disorderly
conduct.” Section 201.13 of the order from the police department, entitled “Human Relations,”
required employees to promote “an image of professionalism at all times,” treat fellow
employees with “respect, courtesy and tact,” and “conduct themselves in a manner that promotes
teamwork and cooperation.” On appeal, the employer argues that Monroe violated these rules
and regulations and emphasizes that the Internal Affairs Division of the Fairfax County Police
Department found that Monroe’s unprofessional conduct on December 14, 2012 violated the
department’s human relations policy.8
Rules mandating professional conduct in the workplace have a myriad of purposes and
benefit both employers and employees. These rules ensure appropriate and efficient work
environments and can attract and promote business. Additionally, these rules encourage civility
among employees and discourage office quarrels that can, in extreme cases, lead to workplace
8
The employer also argued before the commission that Monroe breached a rule that
required her to be truthful to officers conducting internal affairs investigations. The deputy
commissioner, however, found that Monroe was truthful during the investigation of the
December 14, 2012 incident and noted that a potential violation of this rule could not have
caused Monroe’s injuries. On appeal, the employer did not argue that Monroe’s injuries were
caused by a violation of this rule and accordingly this issue is not before us in the present case.
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violence. Without determining the primary purpose of the employer’s professionalism rules, the
commission found that Monroe violated the employer’s rules through her unprofessional
behavior during her altercation with Powell. The commission, however, also concluded that
Monroe did not intentionally breach the employer’s workplace rules or otherwise commit
misconduct.
In order for the subsections of Code § 65.2-306(A) at issue in this case to bar an
employee from receiving workers’ compensation benefits, that employee must commit willful
misconduct or willfully breach a reasonable workplace rule or regulation. See Code
§ 65.2-306(A)(1) and (5). While the employer may prevail on the defense established by Code
§ 65.2-306 without “proving that the employee, with the rule in mind, purposefully determined
to break it,” see Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 334, 381 S.E.2d 359, 361
(1989), “willful misconduct ‘imports something more than a mere exercise of the will in doing
the act. It imports a wrongful intention.’” Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327,
332, 437 S.E.2d 205, 208 (1993) (quoting Uninsured Employer’s Fund v. Keppel, 1 Va. App.
162, 164, 335 S.E.2d 851, 852 (1985)). Stated another way, “willful misconduct requires
something more than negligence.” Keppel, 1 Va. App. at 164, 335 S.E.2d at 852. “Proof of
negligence, even gross negligence, alone will not support the defense [provided by Code
§ 65.2-306] . . . .” Buzzo, 17 Va. App. at 332, 437 S.E.2d at 208.
As previously stated, whether an employee has committed willful misconduct or the
willful breach of a workplace rule are questions of fact, and the commission’s conclusions
concerning these issues are binding on appeal when they are supported by credible evidence.
See Owens Brockway, 20 Va. App. at 471-72, 456 S.E.2d at 161; see also Adams v. Hercules,
Inc., 21 Va. App. 458, 463, 465 S.E.2d 135, 137 (1995). We find that credible evidence
supported the commission’s conclusion that Monroe did not willfully breach the employer’s
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professional conduct rules or otherwise willfully commit misconduct. The same evidence and
inferences that established that Monroe was not the aggressor in the altercation with Powell also
implied that she did not intend to act unprofessionally.
The December 14, 2012 altercation began when Monroe simply asked Powell a question
about work. The conversation, however, turned into an argument in which both parties raised
their voices and called each other names. Although Monroe acted unprofessionally when she
raised her voice, no evidence in the record established that she intended to start an argument with
Powell when she asked him why the type of locks used in the deer management programs had
changed. Moreover, Monroe attempted to stop her unprofessional name-calling statement before
she referred to Powell as a “jerk,” and she only completed her sentence when she was goaded on
by Powell. Thus, Monroe attempted to avoid insulting Powell and the commission could imply
that she would not have done so without his encouragement and active participation in the
perpetuation of the argument.
Furthermore, the commission found that Monroe accidentally touched Powell’s leg when
she lost her balance. While Monroe may have acted incautiously when she rolled her chair
toward Powell, her conduct only amounted to negligence. She testified that she only rolled her
chair towards Powell to reach a better physical position from which to continue the argument and
that she did not intend to assault or even touch Powell. As Monroe only accidentally touched
Powell’s leg, this conduct was not willful and cannot support the employer’s defense.
While Monroe’s conduct was careless, negligent, and ultimately unprofessional,
credible evidence supported the commission’s decision that Monroe did not willfully commit
misconduct or breach the employer’s rules and regulations concerning professionalism in the
workplace. Monroe did not intentionally start the argument with Powell, she attempted to refrain
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from referring to him unprofessionally, and her physical contact with him was accidental.
Accordingly, the commission did not err regarding this issue.
III. CONCLUSION
As credible evidence supported the commission’s decision, it did not err by concluding
that Monroe’s lower back injury arose from her employment and that she did not willfully
commit misconduct or breach any workplace rules. Therefore, we affirm the commission’s
decision.
Affirmed.
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