Wendy Nemetz v. Virginia Employment Commission and Weisbrod & Phillips ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphreys and Powell
Argued at Richmond, Virginia
WENDY NEMETZ
MEMORANDUM OPINION * BY
v. Record No. 0482-08-1 JUDGE CLEO E. POWELL
DECEMBER 23, 2008
VIRGINIA EMPLOYMENT COMMISSION AND
WEISBROD & PHILLIPS
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Joseph A. Leafe, Judge Designate
Jonathan H. Walker (Mason, Mason, Walker & Hedrick, on
briefs), for appellant.
Cheryl A. Wilkerson, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General; Jasen Eige, Deputy Attorney
General; Elizabeth B. Peay, Assistant Attorney General, on brief),
for appellee Virginia Employment Commission.
(Christina E. James; Kevin P. Shea, on brief), for appellee Weisbrod & Phillips.
Appellee Weisbrod & Phillips submitting on brief.
Wendy Nemetz (“Nemetz”) appeals from a ruling of the Circuit Court of the City of
Hampton upholding the determination of the Virginia Employment Commission (“VEC”) that
she voluntarily quit her employment without good cause. We affirm the judgment of the trial
court.
I. BACKGROUND
Nemetz worked as a legal assistant for Weisbrod & Phillips from October 2004 to March
3, 2006. One of her responsibilities was ensuring that appointments were properly entered into
the calendar of Steven Weisbrod (“Weisbrod”). On February 28, 2006, Weisbrod learned he was
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
late for a hearing that had not been entered in his calendar. When the error was discovered,
Weisbrod became upset with Nemetz. At that time, Nemetz led Weisbrod to believe that she was
going to quit. Weisbrod informed his partner, Carter Phillips (“Phillips”) of Nemetz’s pending
resignation.
On March 2, 2006, Phillips informed Nemetz that he and Weisbrod accepted her
resignation and her last day would be March 10, 2006. The next day, Nemetz overheard Phillips
ask a co-worker why she (Nemetz) was at work that day. Phillips then made a comment using
profanity. Shortly thereafter, Nemetz packed up her personal belongings, turned in her key to the
office, and left. Nemetz did not return.
Nemetz filed for unemployment benefits with the Virginia Employment Commission
(“VEC”) on March 15, 2006. The VEC determined that Nemetz was disqualified from receiving
benefits on the grounds that she voluntarily left employment without good cause. The Circuit
Court for the City of Hampton affirmed the VEC’s denial of unemployment compensation
benefits.
II. ANALYSIS
In any judicial review proceeding, “[t]he Commission’s findings of fact, if supported by
evidence and in the absence of fraud, are made conclusive [by Code § 60.2-625(A)], and the
jurisdiction of the [] courts is confined to questions of law.” Virginia Employment Comm’n v.
Virginia Beach, 222 Va. 728, 734, 284 S.E.2d 595, 598 (1981).
“Under Code § 60.2-618(1), an individual is disqualified from receiving benefits if the
commission finds that the employee is unemployed because he or she left work voluntarily
without good cause.” Shifflett v. Virginia Employment Comm’n, 14 Va. App. 96, 98, 414
S.E.2d 865, 866 (1992). In Shifflett, this Court affirmed the commission’s finding that an
“employee’s refusal to work out a notice period, after being informed of a future discharge, is a
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voluntary leaving, or an intervening cause of unemployment.” Id. (citing Wilson v. Bartlett Tree
Expert Co., Inc., Commission Decision No. 28940-C (Sept. 28, 1987)).
If, however, an employee gives two weeks’ notice and the employer terminates her prior
to the notice date, then the portion of the worker’s involuntary unemployment is compensated.
Code § 60.2-612(8); see also Actuarial Benefits & Design Corp. v. Virginia Employment
Comm’n, 23 Va. App. 640, 650, 478 S.E.2d 735, 740 (1996).
Appellant argues that, in light of Code § 60.2-612(8), a broad application of Shifflett will
create a completely incongruous rule of law favoring employers over employees. To correct this
incongruity, appellant proposes that this Court apply Shifflett only to those situations where the
employee is needed by the employer (e.g. to train a replacement), and the employee voluntarily
terminates her employment. In all other situations, appellant would have this Court apply the
inverse of Code § 60.2-612(8): if an employer gives the employee notice and the employee
terminates her employment prior to the notice date, then the employee would become eligible for
compensation after the notice date.
This Court cannot agree with appellant’s proposition. Such a rule would run counter to
the purpose of the Unemployment Compensation Act. In passing the Act, the General Assembly
sought to “provide temporary financial assistance to employees becoming unemployed ‘through
no fault of their own.’” Actuarial, 23 Va. App. at 649, 478 S.E.2d at 740 (citing Virginia
Employment Comm’n v. Gantt, 7 Va. App. 631, 634, 376 S.E.2d 808, 810 (1989)) (emphasis
added). Appellant’s proposed rule, however, would provide temporary financial assistance to
employees who become voluntarily unemployed.
Furthermore, “[i]t is well settled that where the construction of a statute has been uniform
for many years in administrative practice, and has been acquiesced in by the General Assembly,
such construction is entitled to great weight with the courts.” Dan River Mills, Inc. v.
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Unemployment Compensation Comm’n, 195 Va. 997, 1002, 81 S.E.2d 620, 623 (1954). As the
VEC noted in its decision, the VEC “has consistently held that an employee’s refusal to work out
a notice period, after being informed of a future discharge, is a voluntary leaving, or an
intervening cause of unemployment. Wilson v. Bartlett Expert Company, Commission Decision
No. 28940-C (September 28, 1987).”
III. CONCLUSION
It is undisputed that on March 2, 2006 Phillips informed Nemetz that March 10, 2006
would be her last day of work. Nemetz chose not to work until that time, but decided to leave on
March 3, 2006 when she felt she was no longer welcome. Under this Court’s ruling in Shifflett,
the Commission properly found that Nemetz voluntarily left and is therefore not eligible to
collect benefits. Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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