Betty J. Davis v. VEC and Pittsylvania Co.School Bd ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
BETTY J. DAVIS
MEMORANDUM OPINION *
v. Record No. 1685-97-3 PER CURIAM
JANUARY 27, 1998
VIRGINIA EMPLOYMENT COMMISSION
AND PITTSYLVANIA COUNTY SCHOOL BOARD
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
(Philip B. Baker; Joseph A. Sanzone
Associates, P.C., on brief), for appellant.
(Richard Cullen, Attorney General; William A.
Diamond, Assistant Attorney General; Robert
L. Walker, Assistant Attorney General, on
brief), for appellee Virginia Employment
Commission.
(Glenn W. Pulley; Clement & Wheatley, on
brief), for appellee Pittsylvania County
School Board.
Betty J. Davis contends that the trial court erred in
affirming a decision of the Virginia Employment Commission which
disqualified her from receiving unemployment benefits on the
ground that she was discharged from her employment for misconduct
connected with work under Code § 60.2-618(2). Upon reviewing the
record and briefs of the parties, we conclude this appeal is
without merit. Accordingly, we summarily affirm the circuit
court's decision. See Rule 5A:27.
"Initially, we note that in any judicial proceedings ``the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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.'" Israel v. Virginia Employment Comm'n, 7 Va. App. 169,
172, 372 S.E.2d 207, 209 (1988) (citation omitted). "In accord
with our usual standard of review, we 'consider the evidence in
the light most favorable to the finding by the Commission.'"
Wells Fargo Alarm Servs., Inc. v. Virginia Employment Comm'n, 24
Va. App. 377, 383, 482 S.E.2d 841, 844 (1997) (citation omitted).
So viewed, the evidence proved that Davis worked as a bus
driver for the Pittsylvania County School Board from September 5,
1973 through September 3, 1996. The School Board had a policy,
of which Davis was aware, that prohibited bus drivers from
discharging students at any location other than an authorized bus
stop.
Davis was assigned to drive students to and from Blairs
Middle School. On September 3, 1996, Pittsylvania County was
experiencing torrential rains and flooding which caused some
roads in the county to be closed. Before Davis departed that
afternoon to take the children on her route home, the school
principal informed her that one of the roads on the route
-- Route 866 -- was closed due to flooding. The principal
advised Davis to exercise her judgment in completing the route.
Upon reaching Route 866, Davis discovered that the road was
impassable. Nearby, Davis observed Carolyn Simpson Harper, who
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was standing outside her house, waiting for her grandchildren to
be dropped off by another bus. Davis testified that, at that
time, "it was raining so hard, you could barely see how to
drive." Davis had seven children on her bus that were to be
discharged at stops along Route 866. She asked Harper if these
seven children could use Harper's telephone to call their
parents. Harper assented.
Davis left the seven children in Harper's yard and departed
without determining whether the children, who ranged in age from
eleven to thirteen years old, actually proceeded to Harper's
house to use the phone. She did not know whether any of the
children's parents would be home.
Before discharging the children at Harper's residence, Davis
made no attempt to ascertain whether there was an alternate route
by which she could take them home. The commission found as
follows:
[Davis] knew that [Route 866] intersected at
least two other roads which could provide her
access beyond the point where she was
stopped. In fact, one of those access points
was near her home, and she actually drove on
it later on in her route. Another school bus
driver delivering elementary school children
was able to access that portion of the road
cut off by flood waters by using one of the
alternate routes.
Instead of calling their parents from Harper's house, the
children walked home. Some of the children walked as far as two
miles and waded through flood waters five feet deep to get to
their residences.
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Code § 60.2-618(2) provides that a claimant will be
disqualified from receiving unemployment benefits if she is
discharged from employment for misconduct connected with work.
[A]n employee is guilty of "misconduct
connected with his work" when he deliberately
violates a company rule reasonably designed
to protect the legitimate business interests
of his employer, or when his acts or
omissions are of such a nature or so
recurrent as to manifest a willful disregard
of those interests and the duties and
obligations he owes his employer.
Branch v. Virginia Employment Comm'n, 219 Va. 609, 611, 249
S.E.2d 180, 182 (1978). "Whether an employee's behavior
constitutes misconduct . . . is a mixed question of law and fact
reviewable by this court on appeal." Israel, 7 Va. App. at 172,
372 S.E.2d at 209.
When an employer adopts a rule, that
rule defines the specific behavior considered
to harm or to further the employer's
interests. By definition, a violation of
that rule disregards those interests. The
rule violation prong, then, allows an
employer to establish a prima facie case of
misconduct simply by showing a deliberate act
which contravenes a rule reasonably designed
to protect business interests.
Virginia Employment Comm'n v. Gantt, 7 Va. App. 631, 634-35, 376
S.E.2d 808, 811, aff'd on reh'g en banc, 9 Va. App. 225, 385
S.E.2d 247 (1989). A single violation of a policy may be
sufficient, as a matter of law, to constitute misconduct. See
id. at 636, 376 S.E.2d at 812.
Credible evidence supports the commission's finding that
Davis was discharged for misconduct. She deliberately violated a
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school policy with which she was familiar. In dangerous weather
conditions, she discharged seven children at an unauthorized
location without waiting to ensure their safety and well-being.
As a result of her actions, these children were exposed to
potentially life-threatening conditions.
"Once the employer has borne the burden of showing
misconduct connected with the work, . . . the burden shifts to
the employee to prove circumstances in mitigation of his or her
conduct." Id. at 635, 376 S.E.2d at 811. Evidence of mitigation
may appear in many forms which, singly or in combination, to some
degree explain or justify the employee's conduct. Various
factors to be considered may include: the importance of the
business interest at risk; the nature and purpose of the rule;
prior enforcement of the rule; good cause to justify the
violation; and consistency with other rules.
Id.The record supports the commission's finding that Davis
presented insufficient evidence of mitigating circumstances.
When the weather conditions of September 3 are considered, the
employer's policy regarding authorized bus stops was indelibly
linked with the safety and welfare of the children. Davis
presented no evidence that she knew Harper or that Harper was
trustworthy. Davis also failed to assure that the children
followed her instruction to call their parents from Harper's home
and that the parents were able to get their children.
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Accordingly, the commission did not err in disqualifying her from
receiving unemployment benefits.
Affirmed.
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