Wilma S. Gardner v. VEC, Hercules Inc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton, and Overton
Argued at Salem, Virginia
WILMA S. GARDNER
v. Record No. 2240-94-3 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
VIRGINIA EMPLOYMENT COMMISSION, JANUARY 16, 1996
HERCULES, INC. and
STANDARD INDUSTRIAL MAINTENANCE, INC.
FROM THE CIRCUIT COURT OF CARROLL COUNTY
Duane E. Mink, Judge
Margaret T. Schenck (Southwest Virginia Legal Aid
Society, Inc., on briefs), for appellant.
Patricia H. Quillen, Assistant Attorney General
(James S. Gilmore, III, Attorney General; Lisa J.
Rowley, Assistant Attorney General, on brief), for
appellee Virginia Employment Commission.
No briefs or arguments for appellees Hercules,
Inc. and Standard Industrial Maintenance, Inc.
Wilma Gardner appeals from a decision of the Circuit Court
of Carroll County affirming the Virginia Employment Commission's
denial of her claim for unemployment compensation benefits. The
Commission found Gardner disqualified for benefits because she
voluntarily resigned from her position without good cause. We
find adequate evidence in the record to support this
determination, and we affirm the decision of the trial court.
Gardner's employment entailed cleaning restrooms, a
cafeteria, and administrative offices. On her first day, she
noticed cigarette smoke in many of the work areas to which she
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
would be exposed. Smoke bothered her, and she told her
supervisor that she did not know if she would be able to handle
the smoke. Her supervisor told her that this job and all others
in the building would require her to come into contact with
cigarette smoke. Gardner nevertheless began work and continued
for three days. She then resigned by leaving a message with her
supervisor's receptionist. While she did not give any reason at
that time for her resignation, when she returned to pick up her
check later she stated that health problems had caused her to
leave. She did not seek medical treatment prior to her
resignation. She did not inform her employer that she could not
continue working because of the smoke nor did she request a
transfer.
If an employee voluntarily leaves employment without good
cause, that individual becomes disqualified for unemployment
compensation. Code § 60.2-618(1). The question of good cause
must be considered with a two-part analysis. The Commission and
reviewing courts must first apply an objective standard to the
reasonableness of the employment dispute and then to the
reasonableness of the employee's efforts to resolve that dispute
before leaving. Umbarger v. Virginia Employment Comm'n, 12 Va.
App. 431, 435, 404 S.E.2d 380, 383 (1990).
Gardner's conduct does not rise to a level sufficient to
satisfy the second part of the analysis. "[A]n employee, who for
some reason, becomes dissatisfied with his work, must first
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pursue every available option open to him whereby he might
alleviate or correct the condition of which he complains before
relinquishing his employment." Lee v. Virginia Employment
Comm'n, 1 Va. App. 82, 85, 335 S.E.2d 104, 106 (1985). Gardner
mentioned that smoke bothered her on the first day. After that,
she made no attempts to correct the problem. She did not request
a transfer or leave. She did not discuss alternatives with her
supervisor. She did not even inform her supervisor of her
troubles until a week after she resigned. The record does not
disclose the required "steps that could be reasonably expected of
a person desirous of retaining his employment before hazarding
the risks of unemployment." Id.
Having found that Gardner failed the second element of the
Umbarger two-part analysis, we need not discuss the first. The
Commission and the trial court properly disqualified Gardner from
unemployment benefits for her voluntary resignation without good
cause.
Affirmed.
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BENTON, J., dissenting.
Gardner left her employment because of cigarette smoke in
her workplace environment and the harmful effect of the smoke on
her health. Thus, based on Umbarger v. VEC, 12 Va. App. 431, 404
S.E.2d 380 (1991), I would hold that the evidence proved that
Gardner had good cause to leave her employment.
The evidence in the record proved that Gardner informed her
supervisor on her first day of employment that she could not
tolerate cigarette smoke. The supervisor, who was smoking,
extinguished his cigarette and told her that "the only jobs . . .
[available] in that building . . . [put] you . . . in contact
with cigarette smoke." Gardner was employed and worked for three
days. However, she quit after she began to experience breathing
problems.
The evidence proved that the employer had no jobs available
that would not expose Gardner to cigarette smoke. Gardner's
supervisor testified that "she was doing a great job," but he had
no job that was in a smoke-free environment. The supervisor
testified that "this job that she had would probably have been
the least [contact with cigarette smoke] because she was cleaning
in the administrative offices which took about 50 percent of her
time." Smoking, however, was permitted in the offices.
The evidence proved that all of Gardner's prior employment
had been in smoke-free environments. The evidence also proved
that Gardner suffered ill effects from cigarette smoke and that
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she informed the supervisor of her problem when she was hired.
In addition, the undisputed evidence proved that the employer had
no alternative employment available that was in a smoke-free
environment. Under Umbarger, Gardner was entitled to receive
unemployment benefits.
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