Jerry F. Hunter v. Virginia Employment Commission ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia
JERRY F. HUNTER
MEMORANDUM OPINION * BY
v. Record No. 0947-97-3 JUDGE LARRY G. ELDER
DECEMBER 23, 1997
VIRGINIA EMPLOYMENT COMMISSION, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
James L. Scruggs (Virginia Legal Aid Society,
Inc., on briefs), for appellant.
Robert L. Walker, Assistant Attorney General
(Richard Cullen, Attorney General; William A.
Diamond, Assistant Attorney General, on
brief), for appellee Virginia Employment
Commission.
No brief or argument for appellee D. M.
Broughton & Associates, Inc.
Jerry F. Hunter (appellant) appeals an order of the Circuit
Court of the City of Lynchburg (circuit court) affirming a
decision of the Virginia Employment Commission (commission)
denying his claim for unemployment benefits. He contends that
the trial court erred when it concluded that the evidence was
sufficient to support the commission's determination that he was
"discharged for misconduct connected with his work." For the
reasons that follow, we affirm.
"In order to receive unemployment benefits, a claimant must
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
be eligible under Code § 60.2-612 and not disqualified under Code
§ 60.2-618." Actuarial Benefits & Design Corp. v. Virginia
Employment Comm'n, 23 Va. App. 640, 645, 478 S.E.2d 735, 737
(1996). Under Code § 60.2-618(2), a claimant is disqualified
from receiving unemployment benefits "if the Commission finds
such individual is unemployed because he has been discharged for
misconduct connected with his work." The Virginia Supreme Court
has construed the phrase "misconduct connected with his work" to
bar entitlement to benefits in two scenarios: (1) when the
claimant "deliberately violate[d] a company rule reasonably
designed to protect the legitimate business interests of his
employer" or (2) when "[the claimant's] 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 to his
employer." Branch v. Virginia Employment Comm'n, 219 Va. 609,
611, 249 S.E.2d 180, 182 (1978) (emphasis in original); see also
Virginia Employment Comm'n v. Gantt, 7 Va. App. 631, 634, 376
S.E.2d 808, 811, aff'd en banc, 9 Va. App. 225, 385 S.E.2d 247(1989); Israel v. Virginia Employment Comm'n, 7 Va. App. 169,
173, 372 S.E.2d 207, 209 (1988). The range of behavior that
constitutes "misconduct" under Code § 60.2-618(2) is more narrow
than the range of behavior that justifies an employer's decision
to discharge an employee. "[E]mployees who are fired for what
the employer considers good cause may [still] be entitled to
unemployment compensation," Blake v. Hercules, Inc., 4 Va. App.
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270, 273, 356 S.E.2d 453, 455 (1987), and "behavior which is
involuntary, unintentional or the product of simple negligence
does not rise to the level necessary to justify a denial of
unemployment benefits." Borbas v. Virginia Employment Comm'n, 17
Va. App. 720, 722, 440 S.E.2d 630, 631 (1994).
The burden is on the employer to prove that a claimant's
discharge was due to misconduct connected with his work. See
Kennedy's Piggly Wiggly Stores, Inc. v. Cooper, 14 Va. App. 701,
705, 419 S.E.2d 278, 280-81 (1992). Once the employer has
established a prima facie case of misconduct connected with the
work, "the burden shifts to the claimant to prove circumstances
in mitigation of his or her conduct." Gantt, 7 Va. App. at 635,
376 S.E.2d at 811; see also Whitt v. Ervin B. Davis & Co., Inc.,
20 Va. App. 432, 438-39, 457 S.E.2d 779, 782 (1995). Mitigating
circumstances include those considerations that tend to establish
that the employee's actions were not in deliberate, willful
disregard of a company rule or the employer's business interests.
Gantt, 7 Va. App. at 635, 376 S.E.2d at 811.
"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. The
commission's factual findings are conclusive and binding if
supported by the evidence and in the absence of fraud. Code
§ 60.2-625. "Under well settled principles, we consider the
evidence in the light most favorable to the findings of the VEC
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to determine whether employer met its burden of proving that
claimant was discharged for misconduct connected with [his]
work." Whitt, 20 Va. App. at 436, 457 S.E.2d at 781.
We hold that appellant's failure to notify employer of his
absence from work until noon on July 8, 1996 constituted
"misconduct connected with his work" that disqualified him from
receiving unemployment benefits. Appellant does not contend that
employer's attendance policy is not "reasonably designed to
protect the legitimate business interests of [employer]." The
commission found that appellant "knew that his employer expected
prompt notification if he was unable to report for work as
scheduled" and concluded that appellant "deliberately and
willfully failed to give [notice to employer] in the morning of
July 8, 1996." These findings are supported by credible evidence
in the record. Charles W. Read, employer's president, testified
that employer had a verbal policy requiring employees to notify
it of absences "first thing in the morning." He also testified
that this policy was "made plain" to all employees, including
appellant. Appellant testified that, when he awoke on July 8, he
experienced substantial pain in the area of his stomach.
However, despite his knowledge that he was expected at work at
7:30 in the morning and that employer required prompt
notification of illness-related absences, appellant did not
report his absence to employer until "about noon." Appellant
offered no evidence indicating that his condition on July 8
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prevented him from either calling employer before noon or asking
his mother to call for him. In light of the commission's
findings, which are binding on appeal, we conclude that appellant
"deliberately violated a company rule reasonably designed to
protect the legitimate business interests of his employer." As
such, the circuit court's affirmance of the commission's decision
that appellant was disqualified from receiving benefits was not
erroneous.
For the foregoing reasons, we affirm the order of the
circuit court.
Affirmed.
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