COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Kelsey and Alston
Argued at Richmond, Virginia
DEBORAH SMITH
OPINION BY
v. Record No. 0860-11-2 JUDGE D. ARTHUR KELSEY
JANUARY 31, 2012
VIRGINIA EMPLOYMENT COMMISSION
AND SWIFT TRANSPORTATION CO., INC.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Martin Wegbreit (Central Virginia Legal Aid Society, on
briefs), for appellant.
Elizabeth Peay, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee
Virginia Employment Commission.
No brief or argument for appellee Swift Transportation Co., Inc.
After quitting her job as a truck dispatcher, Deborah Smith filed an administrative claim
for unemployment benefits with the Virginia Employment Commission (VEC). The VEC
denied the claim and the circuit court, upon Smith’s appeal, affirmed the denial. Reviewing the
facts under a deferential standard and the law de novo, we affirm the circuit court’s holding.
I.
Like the circuit court, we must “consider the evidence in the light most favorable to the
finding by the Commission.” Va. Emp’t Comm’n v. Trent, 55 Va. App. 560, 565, 687 S.E.2d
99, 101 (2010) (citation omitted); see also Va. Emp’t Comm’n v. Fitzgerald, 19 Va. App. 491,
493, 452 S.E.2d 692, 693 (1995) (applying principle to “judicial review of a commission
decision pursuant to Code § 60.2-625(A)”).
So viewed, the evidence before the VEC showed Smith worked for Swift Transportation
as a dispatch assistant. She received three days of training when she began the job. During the
course of her employment, she consistently made routing mistakes that caused truckers to be
overpaid for their routes. She received three written (along with various verbal) warnings
regarding the quality of her work. At the VEC hearing, Smith claimed she asked for additional
training, which she said her supervisor failed to provide. The employer’s representative,
however, testified Smith was given “formal counseling” to identify her mistakes and to show her
“how to correct” them. App. at 21-22.
After a little more than a year on the job, Smith voluntarily quit because she thought she
would eventually be fired due to her chronic mistakes. She also wanted to “get in college” so
she could find “another way of having some kind of income.” Id. at 16. After leaving work,
Smith filed for unemployment benefits with the VEC. An appeals examiner denied the claim
and the VEC affirmed the denial. “The record shows,” the VEC held, “that the claimant’s
primary reason for leaving was that she anticipated discharge.” Id. at 26.
Citing its own precedent, the VEC concluded: “For the last fifty years the Commission
has consistently held that ‘anticipation of being discharged’ is not good cause for leaving a job.”
Id. (citation omitted). As early as the 1950s, the VEC explained its position this way:
Cases where an individual leaves his work in anticipation of being
discharged at some future date are not new to this Commission. In
such cases the holdings have established the principle that an
anticipated discharge is not a discharge in fact, and if the claimant
elects to leave before the discharge actually occurs he does so
voluntarily. The threat of discharge is sometimes used to warn or
exhort an employee, but the threat is not tantamount to actual
discharge.
Id. (quoting Hutchinson v. Hill Refrigeration Corp., VEC No. 3251-C (July 10, 1958)). Smith
appealed the VEC’s decision to the circuit court and, upon meeting with no success there, now
appeals to us.
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II.
In all “judicial proceedings” involving VEC appeals, “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.” Code § 60.2-625(A). A decision
by the VEC that conjoins both factual and legal issues presents a “mixed question” on review.
Snyder v. Va. Emp’t Comm’n, 23 Va. App. 484, 491, 477 S.E.2d 785, 788 (1996). In such
cases, we segregate (to the extent we can) the law from the facts — reviewing the law de novo
and the facts with the deference required by Code § 60.2-625(A). We do so, however, mindful
of the overarching premise that “a reviewing court cannot substitute its own judgment for the
agency’s on matters committed by statute to the agency’s discretion.” Trent, 55 Va. App. at 568,
687 S.E.2d at 103 (citation and internal quotation marks omitted).
On this factual record, the VEC concluded Smith’s “primary reason for leaving was that
she anticipated discharge.” App. at 26. The VEC found her reason for quitting was not — as
Smith argued — that her frustration over the alleged lack of training rendered the workplace so
intolerable that she could no longer bear to stay. “Even if the Commission were to treat the
claimant’s frustration over a lack of additional training rather than the anticipation of discharge
as the claimant’s reason for leaving,” id. at 27, the VEC held in the alternative, this frustration
did not constitute good cause for quitting.
We need not address the VEC’s alternative good-cause holding because we agree that,
with respect to Smith’s primary reason for quitting her job, the VEC’s determination rested
squarely on her own testimony.1 On this factual issue, our appellate review begins and ends
1
“As an appellate court, we seek ‘the best and narrowest ground available’ for our
decision, Armstead v. Commonwealth, 56 Va. App. 569, 576, 695 S.E.2d 561, 564 (2010), and
thus strive to resolve cases ‘on what we conceive to be the determinative points,’ Justice Herbert
B. Gregory, Shorter Judicial Opinions, 34 Va. L. Rev. 362, 365 (1948).” Morris v. City of Va.
Beach, 58 Va. App. 173, 180, 707 S.E.2d 479, 482 (2011).
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there. We cannot review “the administrative record de novo” and “reweigh the possible
inferences that could be drawn from it.” Trent, 55 Va. App. at 567, 687 S.E.2d at 103 (citation
omitted). “Instead, a court can overturn VEC factfinding ‘only if, in considering the record as a
whole, a reasonable mind would necessarily come to a different conclusion.’” Id. at 567-68, 687
S.E.2d at 103 (emphasis in original and citation omitted).
To constitute “good cause” for quitting, the employee must prove the employer created
workplace conditions so intolerable that the employee “had no reasonable alternative except to
quit her job.” Umbarger v. Va. Emp’t Comm’n, 12 Va. App. 431, 426, 404 S.E.2d 380, 383
(1991). Applying its longstanding precedent, the VEC held “good cause” under Code
§ 60.2-618(1) cannot be established by an employee who quits her job merely because she
believes she will eventually be fired. We agree. In such cases, the employee — not the
employer — causes the wage loss. Neither the VEC nor the courts should be asked to speculate
when, if ever, the employee’s prediction might have come to pass or whether the hypothesized
firing might have implicated a disqualification for misconduct under Code § 60.2-618(2)(b).
See, e.g., Va. Emp’t Comm’n v. Cmty. Alts., Inc., 57 Va. App. 700, 704, 705 S.E.2d 530, 532-33
(2011).
III.
Because Smith voluntarily left her job without good cause, the circuit court correctly
affirmed the VEC’s order disqualifying Smith from receiving unemployment benefits.
Affirmed.
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