Robert S Peck v. VEC and Kavita D Ruchandani

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia
ROBERT S. PECK
MEMORANDUM OPINION * BY
v. Record No. 2469-01-4 JUDGE RICHARD S. BRAY
AUGUST 20, 2002
VIRGINIA EMPLOYMENT COMMISSION AND
KAVITA D. RUCHANDANI
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Gaylord L. Finch, Jr., Judge
Robert S. Peck, pro se.
Robert R. Dively, Assistant Attorney General
(Randolph A. Beales, Attorney General;
Richard B. Zorn, Senior Assistant Attorney
General; Lisa J. Rowley, Assistant Attorney
General, on brief), for appellee Virginia
Employment Commission.
No brief of argument for appellee Kavita D.
Ruchandani.
Robert S. Peck (employer) appeals a final order of the trial
court, which affirmed an award of unemployment benefits to Kavita
D. Ruchandani (claimant) by the Virginia Employment Commission
(VEC). Employer complains he was improperly precluded from
presenting evidence that claimant voluntarily resigned her
employment without good cause and, further, that the VEC
erroneously found claimant was neither discharged for misconduct
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
nor voluntarily resigned employment. Finding no error, we affirm
the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
In undertaking judicial review of an administrative
decision of the VEC pursuant to Code § 60.2-625(A), "the courts
must consider the evidence in the light most favorable to the
finding by the [VEC]." Virginia Employment Comm'n v. Peninsula
Emergency Physicians, Inc., 4 Va. App. 621, 626, 359 S.E.2d 552,
554 (1987) (citation omitted). "[T]he [VEC] is charged with the
responsibility of resolving questions of credibility and of
controverted facts." Virginia Employment Comm'n v. Gantt, 7
Va. App. 631, 635, 376 S.E.2d 808, 811, aff'd en banc, 9
Va. App. 225, 385 S.E.2d 247 (1989). Thus, factual
determinations of the VEC "supported by evidence[,] . . . in the
absence of fraud, shall be conclusive, and the jurisdiction of
the court shall be confined to questions of law." Code
§ 60.2-625(A); see Lee v. Virginia Employment Comm'n, 1 Va. App.
82, 85, 335 S.E.2d 104, 106 (1985).
Here, findings of fact reported by the VEC and supported by
the record disclosed claimant entered into the subject
employment as a "nanny/housekeeper" on September 11, 2000. Her
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duties included "picking [employer's son] up from school" in
Washington D.C., "some meal preparation" and "light housework."
In October 2000, employer and his wife began "exploring the
possibility of moving" and, "intend[[ing] to . . . show the
house" to potential buyers on November 4 or 5, wife "wanted
[claimant] to organize . . . the basement" by "pack[ing] various
materials." Accordingly, on October 30, wife advised claimant
that wife "needed to pick up boxes," and claimant volunteered
for the task. However, when claimant informed wife the
following morning that she did not intend to obtain the boxes
until November 3, wife, "very upset because she did not believe
. . . there would [then] be sufficient time to prepare the house
for showing," "obtained the boxes herself." Later in the day,
employer returned home and "discharged" claimant, effective
November 11, 2000.
The VEC further found that wife had "primary interaction
with the claimant on a day-to-day basis," was "happy with [her]
'on average,'" and had "agreed to assist [her] in locating other
employment as a nanny," including "a favorable reference." Wife
"emphasiz[ed]" in her testimony that claimant was "terminated"
"only because she had failed to pick up the boxes . . . ."
However, employer had already decided to "replace . . . claimant
because she seemed more interested in performing the duties of a
nanny only and seemed to object to doing housework chores." In
contrast to both employer and his wife, claimant "was under the
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impression that her job would . . . end . . . November 10 . . .
because employer felt" the commute to his new residence "would
be too far."
Once unemployed, claimant filed for related benefits with
the VEC. Advised of the application, employer objected,
reporting claimant was "discharged" for "[r]efusal to carry out
duties when assigned despite repeated warnings." When a VEC
Deputy subsequently determined claimant eligible for benefits,
employer appealed, and an "Appeals Examiner," after conducting
related hearings on January 9 and 31, 2001, affirmed "the
determination of the Deputy." Employer further appealed to the
commission, and a "Special Examiner" "adopted" the "findings of
fact made by the Appeals Examiner," together with "certain
[specified] corrections and additions," and ruled claimant
neither resigned employment nor was discharged for misconduct. 1
Employer thereafter petitioned the trial court for judicial
review, which resulted in a further affirmation of the VEC and
the instant appeal.
II.
Employer first contends the "Appeals Examiner" violated due
process by refusing to allow him to present evidence and
cross-examine claimant with respect to the issue of resignation.
1
The commission characterized the incident arising from the
packing boxes as a "misunderstanding" between claimant and
employer's wife, not "misconduct in connection with [claimant's]
work."
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He asserts on brief that such testimony was relevant "to prove
. . . [claimant] had resigned" prior to "discharge" and,
therefore, was, "at most, eligible for two weeks of employment
benefits." See Code § 60.2-612(8); 2 see also Actuarial Benefits
& Design Corp. v. Virginia Employment Comm'n, 23 Va. App. 640,
645, 478 S.E.2d 735, 737 (1996) (limiting unemployment benefits
to two weeks upon termination following notice of resignation).
"It is well-settled that when a party's evidence has been
ruled inadmissible, the party must proffer or avouch the
evidence for the record in order to preserve the ruling for
appeal; otherwise, the appellate court has no basis to decide
whether the evidence was admissible." Smith v. Hylton, 14
Va. App. 354, 357-58, 416 S.E.2d 712, 715 (1992) (citing
2
Code § 60.2-612(8) states:
An unemployed individual shall be eligible
to receive benefits for any week only if the
Commission finds that:
* * * * * * *
(8) He has given notice of resignation
to his employer and the employer
subsequently made the termination of
employment effective immediately, but in no
case to exceed two weeks for which he would
have worked had the employee separated from
employment on the date of termination as
given in the notice; provided, that the
claimant could not establish good cause for
leaving work pursuant to § 60.2-618 and was
not discharged for misconduct as provided in
§ 60.2-618.
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Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81
(1977)). "The proffer may consist of a unilateral
representation of counsel, if unchallenged, or a mutual
stipulation of the proffered testimony. Absent such
representation of counsel, or stipulation, the ruling will not
be considered on appeal." Klein v. Klein, 11 Va. App. 155, 160,
396 S.E.2d 866, 868 (1990).
Here, employer failed to make the requisite proffer for the
record. Accordingly, we cannot ascertain on appeal whether the
evidence in issue was relevant to determination of the claim,
thereby precluding proper appellate review of the question.
III.
Employer next maintains his evidence established a voluntary
resignation of employment by claimant. We disagree.
Code § 60.2-618(1) disqualifies "an individual for
[unemployment] benefits . . . if the commission finds such
individual is unemployed because he left work voluntarily without
good cause . . . ." Id. The burden is on the employer to prove
an employee "left work voluntarily." Shuler v. Virginia
Employment Comm'n, 9 Va. App. 147, 149-50, 384 S.E.2d 122, 124
(1989). "'Good cause' requires a mixed determination of law and
fact . . . which is reviewable on appeal." Virginia Employment
Comm'n v. Fitzgerald, 19 Va. App. 491, 493, 452 S.E.2d 692, 693
(1995).
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In affirming the decision of the "Appeals Examiner" on the
instant record, the VEC specifically found "employer or his wife
. . . decided to replace the claimant with someone who was
better at the housekeeping aspects of the job." Under such
circumstances, the VEC correctly reasoned that "the fact . . .
claimant may have agreed November 10, 2000, would be her last
day of work is insufficient to establish the requisite voluntary
notice" of resignation contemplated by Code § 60.2-612(8). See
Shuler, 9 Va. App. at 150-51, 384 S.E.2d at 124 ("The term
'voluntary' connotes '[u]nconstrained by interference;
unimpelled by another's influence; spontaneous; acting of
oneself . . . [r]esulting from free choice.'"). Accordingly,
employer failed to satisfy his burden of proof, and the evidence
supports the VEC's decision.
IV.
Lastly, employer maintains claimant's actions constituted
"misconduct" that disqualified her from unemployment benefits.
Again, we disagree.
"An individual shall be disqualified for benefits upon
separation from the last employing unit . . . if discharged for
misconduct connected with . . . work." Code § 60.2-618.
[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
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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). Like resignation, the employer bears the burden
of proving such misconduct, and the term "should not be so
literally construed as to effect a forfeiture of benefits by an
employee except in clear instances." Kennedy's Piggly Wiggly
Stores, Inc. v. Cooper, 14 Va. App. 701, 705, 707-08, 419 S.E.2d
278, 280, 282 (1992). "Whether an employee's behavior constitutes
misconduct . . . is a mixed question of law and fact reviewable by
this court on appeal." Israel v. Virginia Employment Comm'n, 7
Va. App. 169, 172, 372 S.E.2d 207, 209 (1988) (citation omitted).
The record before us suggests no violation of an employment
rule, and the factual findings of the VEC, supported by the
evidence, established no willful disregard of employer's interests
by claimant. She was not directed to obtain the packing boxes,
and the responsibility was not among her assigned duties. To the
contrary, claimant volunteered for the task only as an
accommodation to employer's wife. Accordingly, the VEC correctly
determined claimant was not discharged for employment-related
misconduct.
We, therefore, affirm the decision of the commission.
Affirmed.
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