Caroline Sword v. Automotive Industries and VEC ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
CAROLINE SWORD
MEMORANDUM OPINION * BY
v. Record No. 1373-98-3 JUDGE JERE M. H. WILLIS, JR.
APRIL 6, 1999
AUTOMOTIVE INDUSTRIES, INC.
and
VIRGINIA EMPLOYMENT COMMISSION
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Donald A. McGlothlin, Jr., Judge
William B. Harper, II (Client Centered Legal
Services of Southwest Virginia, Inc., on
briefs), for appellant.
James W. Osborne, Assistant Attorney General
(Mark L. Earley, Attorney General; William A.
Diamond, Assistant Attorney General; Lisa J.
Rowley, Assistant Attorney General, on brief),
for appellee Virginia Employment Commission.
No brief or argument for appellee Automotive
Industries, Inc.
On appeal from a final judgment affirming the decision of
the Virginia Employment Commission denying her unemployment
compensation benefits, Caroline Sword contends (1) that the trial
court erred in holding that she lacked good cause to refuse the
offer of work, and (2) that the trial court abused its discretion
by considering whether she had been discharged for misconduct.
We find no error and affirm the judgment of the trial court.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
I. Background
Automotive Industries, Inc., (“Automotive”) employed Sword
as a production worker from October 24, 1994 through June 16,
1995. On June 16, 1995, she was discharged and began receiving
unemployment benefits. On July 13, 1995, Automotive offered
Sword her previous job at the same rate of pay, $6.65 an hour.
She refused the offer and was denied further benefits, pursuant
to Code § 60.2-618(3). She appealed. The appeals examiner ruled
that she was entitled to resumed benefits. Automotive appealed.
On behalf of the Commission, a special examiner reversed the
appeals examiner’s ruling. The trial court affirmed the
Commission’s decision and held that Sword was ineligible for
benefits.
Under Code § 60.2-625(A), “the findings of the Commission as
to the facts, if supported by evidence and in the absence of
fraud, shall be conclusive, and the jurisdiction of the court
shall be confined to questions of law.” Code § 60.2-625(A).
“The [Commission’s] findings may be rejected only if, in
considering the record as a whole, a reasonable mind would
necessarily come to a different conclusion.” Craft v. Virginia
Employment Commission, 8 Va. App. 607, 609, 383 S.E.2d 271, 273
(1989). Sword does not contend that the job offered was
unsuitable. The only issue before us is the Commission’s
determination that Sword lacked good cause to refuse the job.
This issue contains “mixed questions of law and fact reviewable
by this court on appeal.” Johnson v. Virginia Employment
Commission, 8 Va. App. 441, 447, 382 S.E.2d 476, 478 (1989).
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II. Whether Sword Had Good Cause to Refuse Employment
Sword argues that the conditions placed upon the job offer
by Automotive were punitive and would have forced her into a
position less favorable than that of a newly hired employee.
The position offered was the same job Sword had held
previously, during the same shift and for the same rate of pay.
Sword would, however, lose her seniority, would have no accrued
vacation time, would be required to work all mandatory overtime,
and could miss no days of work for sixty days, except for
absences due to jury duty, death of her spouse, or a job-related
injury. At the end of sixty days, she would have accrued three
vacation days.
When Automotive made the job offer, Sword asked to report
late the first day of work, in order to attend the reading of a
will. Automotive refused this request, and Sword rejected the
job offer. Sword contends that she refused the job because she
would lose all seniority and because she was unhappy about the
handling of her last paycheck. However, she discussed neither
concern when she was offered the job, nor did she state these
reasons for refusal prior to the hearings before the Commission.
Sword “has the burden to show that good cause exists for her
refusal to accept suitable employment, and she must put forward
real and substantial reasons for her refusal.” Johnson, 8 Va.
App. at 452, 382 S.E.2d at 481 (citation omitted). The record
supports the finding that Sword did not carry this burden. The
job offered the same type of work, at the same shift and at the
same rate of pay. Evidence showed that the average wage for an
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entry level production worker at local facilities was $6.00 per
hour, less than the wage offered Sword. Sword did not prove that
the sixty days probation and the loss of seniority were punitive
conditions. She failed to establish “real and substantial”
reasons for her refusal of the job offer.
III. Whether the Trial Court Improperly Inquired Into
Misconduct
Sword next contends that the trial court improperly inquired
into the reasons behind her initial discharge. She argues that
she had not been discharged for misconduct and that the trial
court was limited to the findings of the appeals examiner. She
mischaracterizes the findings of the trial court and its
consideration of her original discharge.
Within the appeals process before the Commission, each
hearing is de novo, and the Commission may “affirm, modify, or
set aside any decision of [the appeals examiner].” Code
§ 60.2-622. The final fact finder within the Commission was the
special examiner, and the trial court correctly accepted the
special examiner’s findings of fact that were supported by the
record. The record supports the special examiner’s finding that
Sword was discharged “for violating the employer’s attendance
policy.”
Inquiry into the cause of Sword’s dismissal was relevant in
determining whether she had good cause to refuse the conditional
offer of employment. “Factors that do not directly affect a
job’s suitability but rather are peculiar to the employee and her
situation are factors which are appropriately considered as to
whether good cause existed to refuse suitable employment.”
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Johnson, 8 Va. App. at 451, 382 S.E.2d at 481. The fact that
Sword had been disciplined for excessive absenteeism explained
the employer’s conditions. Nothing in the record suggests that
either the Commission or the trial court determined that Sword’s
discharge was due to misconduct as defined under Code
§ 60.2-618(2).
The record supports the finding that Sword lacked good cause
to refuse the employer’s offer of employment. The conditions
placed on her employment were not punitive, but remedial.
Consideration of Sword’s excessive absenteeism prior to her
dismissal was proper, because her absenteeism explained and
justified the terms of the new employment offer.
We affirm the judgment of the trial court.
Affirmed.
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