Gary J. Stasko v. VEC and Van Yahres Tree Co., Inc.

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
GARY J. STASKO
MEMORANDUM OPINION *
v. Record No. 2835-00-2 PER CURIAM
APRIL 24, 2001
VIRGINIA EMPLOYMENT COMMISSION AND
VAN YAHRES TREE COMPANY, INC.
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
(Gary J. Stasko, pro se, on brief).
(Mark L. Earley, Attorney General; Lisa J.
Rowley, Assistant Attorney General; Donald G.
Powers, Assistant Attorney General;
Francis McQ. Lawrence; St. John, Bowling &
Lawrence, on brief), for appellees.
Gary J. Stasko contends that the Circuit Court of the City of
Charlottesville (trial court) erred in affirming a decision of the
Virginia Employment Commission (Commission) that disqualified him
from receiving unemployment compensation benefits. Stasko argues
that the Commission wrongly determined that he left employment
with Van Yahres Tree Company, Inc. (Van Yahres) without good
cause. Upon reviewing the record and the briefs of the parties,
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the trial court's decision. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
"[I]n any judicial proceedings '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.'" 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 established that Stasko worked for
Van Yahres as an arborist and crew leader from February 18, 1996
to January 12, 1999. When Stasko was first hired, Van Yahres paid
him $10 per hour. In November 1996, Van Yahres began paying
Stasko wages on a salaried basis instead of an hourly basis. Van
Yahres initially paid Stasko $32,000 per year, and by January
1999, his pay had risen to $35,000 per year. All other crew
leaders with the company were paid hourly wages. Van Yahres also
paid Stasko's health insurance premiums and gave him a total of
three weeks vacation and sick leave annually. The company allowed
Stasko to use their trucks for personal use.
On or about January 11, 1999, Van Yahres changed the method
of payment of Stasko's wages from a salaried rate back to an
hourly rate. At a hearing before the appeals examiner, David
Rosene, Sales Manager for Van Yahres, testified that neither
- 2 -
Stasko nor the company had been "happy" with the "way things were
going with his salary." After several days of discussion with
Stasko, Van Yahres decided that an hourly pay rate was "the better
way to go." Van Yahres converted Stasko's annual salary to an
hourly wage of $15.50 per hour based on the average number of
hours he worked per week in the previous year. The company also
guaranteed Stasko would have forty hours of work per week in the
winter, with additional overtime hours as they were available in
the summer months.
Rosene stated that Stasko could earn more money at the hourly
wage rate than he had earned while on salary. Rosene also
testified that, other than changing the method of wage payment,
there were no changes made with regard to Stasko's benefits or job
duties. Stasko would also continue to report to the same
supervisor. Rosene testified Stasko advised the company that he
was not willing to work at the hourly wage rate, and he quit after
giving about "five minutes" notice to the company. Rosene also
stated that Stasko had had some "philosophical disagreements" with
his immediate supervisor, and Rosene was unsure whether that was a
factor in Stasko's decision to quit.
Stasko testified that he believed the change in method of
payment was a demotion and involved a "lot of risk." Stasko had
perceived his position with the company as one of "equal footing"
with the officers of the company, and he stated the change to
hourly pay was "a penalty." He testified that going from salaried
- 3 -
to hourly wages "hurt." Stasko also testified that, after Van
Yahres changed the method of his wage payment, the officers of the
company criticized him and attempted to "squeeze" him out of the
company.
Stasko quit his job on January 12, 1999, without having
secured other employment. He applied for unemployment benefits,
and he indicated on the Commission claim for benefits form that
his reason for separation was that he "voluntarily quit." Stasko
also wrote in the explanatory remarks portion of the form,
"Demotion contrary to company success."
The Commission denied Stasko's application for unemployment
benefits. On this appeal, Stasko contends the trial court erred
in affirming the ruling of the Commission. He argues that the
work environment had become hostile, and the officers attempted
to "squeeze" him out of the company.
Code § 60.2-618(1) states that "[a]n individual shall be
disqualified for benefits upon separation from the last
employing unit . . . if the Commission finds such individual is
unemployed because he left work voluntarily without good cause."
"Determining whether an employee voluntarily quit without good
cause is a mixed question of law and fact reviewable on appeal."
Snyder v. Virginia Employment Comm'n, 23 Va. App. 484, 491, 477
S.E.2d 785, 788 (1996). Determining good cause requires a
two-part analysis. See id. at 491, 477 S.E.2d at 788. First, it
must be determined whether the employee's dispute with his
- 4 -
employer is reasonable. If the dispute is reasonable, then it
must be determined whether the employee made reasonable efforts to
resolve the dispute before quitting his employment. See id.
"[B]efore relinquishing his employment
. . . the claimant must have made every
effort to eliminate or adjust with his
employer the differences or conditions of
which he complains. He must take those
steps that could be reasonably expected of a
person desirous of retaining his employment
before hazarding the risks of unemployment."
In other words, a claimant must take all
reasonable steps to resolve his conflicts
with his employer and retain his employment
before voluntarily leaving that employment.
Umbarger v. Virginia Employment Comm'n, 12 Va. App. 431, 434-35,
404 S.E.2d 380, 383 (1991) (citation omitted). An employee may
not rely upon his own "unreasonable and purely subjective
perception" to justify voluntary unemployment. Id. at 435, 404
S.E.2d at 383.
The record supports the Commission's finding that Stasko
voluntarily quit his position without good cause. Stasko admitted
that his pay and benefits would have remained substantially the
same after the change from a salaried wage to an hourly wage.
Indeed, he testified that the determination of the hourly wage
"wasn't a concern." The record also showed that Stasko would have
had the same job duties, the same benefits, and he would have
reported to the same supervisor after the change. Therefore, as
the trial court found, "the proposed restructuring in [Stasko's]
pay would have placed [him] in a position that was virtually
- 5 -
indistinguishable from his prior position from the viewpoint of
annual earnings, fringe benefits, and position in the company's
management structure." Even assuming, arguendo, that these
circumstances involved a "reasonable employment dispute," the
record shows that Stasko took no measure, reasonable or otherwise,
to resolve that dispute before leaving employment. Cf. id. at
437, 404 S.E.2d at 384. Accordingly, the Commission did not err
in disqualifying Stasko from receiving unemployment benefits.
Affirmed.
- 6 -