COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bray
Argued at Norfolk, Virginia
DEBORAH A. WOOD
v. Record No. 0814-94-1 OPINION BY
JUDGE JERE M. H. WILLIS, JR.
VIRGINIA EMPLOYMENT COMMISSION JUNE 20, 1995
and
AMERICOMM DIRECT MARKETING, INC.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Morris B. Gutterman, Judge Designate
Gilman P. Roberts, Jr. (Tidewater Legal Aid
Society, on briefs), for appellant.
Julia D. Tye, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Lisa J. Rowley, Assistant Attorney General,
on brief), for appellee Virginia Employment
Commission.
No brief or argument for appellee Americomm
Direct Marketing, Inc.
Deborah A. Wood was discharged from employment by Americomm
Direct Marketing, Inc. on September 16, 1993. She filed for
unemployment compensation benefits. Her claim was processed by
the Virginia Employment Commission pursuant to Code Title 60.2,
Chapter 6, Article 5 (Code §§ 60.2-619, et. seq.). Upon review,
the Commission, acting through a special examiner pursuant to
Code § 60.2-622(C), denied benefits on the ground that Ms. Wood's
discharge resulted from her misconduct and that she was barred
from receiving benefits by Code § 60.2-618(2). On judicial
review pursuant to Code § 60.2-625, the trial court affirmed the
Commission's determination.
On appeal, Ms. Wood contends that the trial court erred in
denying her unemployment compensation benefits and in failing to
follow the precedent of Kennedy's Piggly Wiggly Store, Inc. v.
Cooper, 14 Va. App. 701, 419 S.E.2d 278 (1992). We find no error
and affirm the judgment of the trial court.
The issue before us is whether Ms. Wood's discharge resulted
from misconduct disqualifying her for benefits. Code § 60.2-618
provides, in pertinent part:
An individual shall be disqualified for benefits upon
separation from the last employing unit for whom he has
worked thirty days or from any subsequent employing
unit:
* * * * * * *
2. . . . [I]f the Commission finds such individual is
unemployed because he has been discharged for
misconduct connected with his work.
In Branch v. Virginia Employment Comm'n, 219 Va. 609, 249 S.E.2d
180 (1978), the Supreme Court defined misconduct within the
contemplation of Code § 60.2-618(2) as follows:
[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
manifest a willful disregard of those interests and the
duties and obligations he owes his employer. Absent
circumstances in mitigation of such conduct, the
employee is "disqualified for benefits," and the burden
of proving mitigating circumstances rests upon the
employee.
Id. at 611-12, 249 S.E.2d at 182 (citations omitted).
Our standard of review is found in Code § 60.2-625(A), which
provides, in pertinent part:
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In any judicial proceedings under this chapter, 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.
We "must consider the evidence in the light most favorable to the
finding of the Commission." Virginia Employment Comm'n v.
Peninsula Emergency Physicians, Inc., 4 Va. App. 621, 626, 359
S.E.2d 552, 554-55 (1987).
On the day of her discharge, Ms. Wood refused to perform a
task requested of her by a supervisor. She was taken to the
office of Brad G. Stewart, a company vice president, to discuss
her insubordination. Mr. Stewart testified:
[W]e were still talking about that incident, and . . .
she . . . , while we were discussing this, . . . she
became very upset and . . . said she was just tired of
this - of this place and . . . she went right down the
line, said she was tired of everybody . . . and she
hoped somebody would get - get rid of her so she could
get out of here . . . .
Mr. Stewart elaborated:
And . . . when she told me she was tired of this
f---ing place and she - she's tired of f---ing David
Craig, and she's tired of myself, she's tired of that
fat Don Horace, and that, you know, she just wants out
and . . . I said, fine, well she went storming out of
the office and . . . that was it. And I went to
personnel and started the paper work.
In earlier performance evaluations, Ms. Wood had been cautioned
about her attitude and her use of abusive language.
The Commission's appeals examiner found:
The employer presented evidence to show that the
claimant's actions on her last day at work were
disruptive to the work place. Furthermore, the
claimant's choice of words were (sic) disrespectful and
the claimant knew or should have known that speaking to
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the vice president in such a manner could lead to
discharge. Therefore, the Appeals Examiner must find
that the claimant was discharged for misconduct
connected with her work.
Affirming the foregoing holding, the Commission's special
examiner further found:
When she stated that she was tired of working in "this
place" and wished someone would get rid of her, she
was, in effect, challenging the vice president's
authority to terminate her. The Commission is unable
to conclude that she was provoked into saying what she
did or using profanity. Accordingly, she has not
established mitigating circumstances for the conduct
which brought about her termination and she should be
disqualified under [Code § 60.2-618(2)].
Ms. Wood relies on our decision in Kennedy's Piggly Wiggly
Stores, Inc. v. Cooper, 14 Va. App. 701, 419 S.E.2d 278 (1992).
In Piggly Wiggly, the employee, who had been injured and
disabled, was in a manager's office, discussing with company
officials his ability to return to work. The discussion turned
to the subject of unionization and became heated. Addressing the
corporate CEO, whom he did not know, the employee said, "Well I
don't know who you are or where you come from but you're full of
s---." He was discharged for insubordination. Noting that the
offensive remark was made under heated circumstances and that no
evidence disclosed that the employee had a record of misconduct
or that the remark was overheard by store employees or customers,
we upheld the trial court's ruling that the remark was
insufficient to constitute misconduct under Code § 60.2-618(2).
We announced that decision with the following caveat:
In reaching this decision, we do not hold, as employer
suggests, that an employee will be entitled to curse or
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verbally revile his employer at least once and still be
entitled to unemployment benefits. We merely hold that
the facts of this case do not support a finding of
willful misconduct so as to result in a forfeiture of
unemployment compensation. Indeed, a single, isolated
instance of vulgar or offensive language addressed to a
superior may, in certain instances, amount to willful
misconduct.
Id. at 708, 419 S.E.2d at 282 (emphasis in original).
The holding in Piggly Wiggly does not control this case.
Ms. Woods' vulgarity and insubordination was not an isolated
incident. She had been cautioned before. It was not simply a
mode of expression under circumstances of provocation. It was
deliberately offensive and was calculated to challenge the
organizational authority of the company and to repudiate her duty
to her employer and her superiors.
The evidence supports the Commission's holding. The trial
court did not err in affirming that holding.
The judgment of the trial court is affirmed.
Affirmed.
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BENTON, J., dissenting.
Although this case is factually similar to Kennedy's Piggly
Wiggly Stores, Inc. v. Cooper, 14 Va. App. 701, 419 S.E.2d 278
(1992), the Commission failed to apply Cooper's holding to this
case. Indeed, the parallels between this case and Cooper suggest
that the Commission simply ignored Cooper. The record reveals
that following an evidentiary hearing, the appeals examiner who
heard the evidence ruled in favor of Deborah Wood and found as
follows:
[Wood] now has the burden of proving that
there were mitigating circumstances. First,
[Wood] presented evidence to show that both
the Accounts Manager and the vice president
also used profanity in speaking to her during
their discussions and arguments. Secondly,
[Wood] presented evidence to show that she
had never received any progressive discipline
per company policy. Third, the evidence
establishes that [Wood] was discharged as a
result of an isolated incident. The Appeals
Examiner is convinced that all parties were
upset during their discussions and arguments.
Taking all of this into consideration, the
Appeals Examiner finds that mitigating
circumstances exist. Therefore, [Wood] will
not be subject to the disqualifying
provisions of the Act.
The special examiner reversed the ruling without any
reference to Cooper. That special examiner is the same special
examiner whose decision we reversed in Cooper. Because the
Commission failed to apply the applicable precedent and because
the employer failed to carry the burden of proving that Wood's
remarks constituted misconduct under Code § 60.2-618(2), I would
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reverse the Commission's decision. Therefore, I dissent.
The Supreme Court of Virginia has defined misconduct as
proscribed by Code § 60.2-618, to be as follows:
[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 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) (citations omitted). This is not a case
in which Wood violated a company rule. Thus, our analysis in
this case is confined to whether Wood's remarks were of "such a
nature . . . as to manifest a willful disregard of [the
employer's business] interests and [Wood's] duties and
obligations . . . [to the] employer." See Cooper, 14 Va. App. at
705, 419 S.E.2d at 281.
Wood was employed by Americomm as a mail office coordinator
for approximately four and one-half years before she was
discharged. She was working on a project assigned by her
supervisor when a supervisor from another department asked her to
complete something for him immediately. Wood first wanted to
complete the job she was doing. The two argued "and curse words
were exchanged by both parties." The next day, Wood discussed
this incident with Brad Stewart, Vice President of Operations.
Stewart testified that "as the discussion went on, it got more
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heated." Stewart found Wood's use of the word, "fuck," to be
abusive. He testified that Wood did not say anything else that
he found to be abusive. He also testified that there was no
reason for her discharge other than her abusive language during
the discussion. Wood testified that both of them had used
profanity. The examiner who heard the evidence found that
Stewart and Wood used "curse words."
In Cooper, this Court stated that "[a] finding of willful
misconduct . . . depends upon the particular circumstances of the
case." 14 Va. App. at 706, 419 S.E.2d at 281. This would
"include the severity of the language used; the quantity of the
language used, i.e., whether it was a lengthy barrage or a brief
incident; whether the language was spoken in the presence of
customers, clients or other employees; whether the employee had a
record of misconduct; . . . and whether the language was provoked
by the employer." Id.
The record reflects that Wood's discussion with Stewart got
progressively more heated. However, no evidence proved that she
initiated the use of profanity. The hearing examiner found that
both Wood and Stewart used "curse words."
Wood's remarks were confined to Stewart's office and were
made in his presence only; no evidence proved that her remarks
were overheard by any customers or employees. See id. at 707,
249 S.E.2d at 282. The employer neither alleged nor proved that
Wood's remarks interfered with the business or were "calculated
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to challenge the organizational authority of the company."
Although the majority places great weight upon Wood being
"cautioned before," Stewart testified that the performance
reviews in which Wood's attitude was addressed were not "actual
warning[s]" but were "part of an evaluation to help her improve
her abilities." In fact, the employer follows a "progressive
discipline" procedure, using verbal and written warnings prior to
terminations. Stewart testified that Wood had not received any
such warnings.
As we stated in Cooper, "[t]he issue in this case is not the
right of the employer to discharge an employee. Rather, the
issue is the employee's right, upon discharge, to receive
unemployment benefits." 14 Va. at 708, 419 S.E.2d at 282.
Because the employer failed to prove that Wood's remarks to
Stewart constituted a willful disregard of the employer's
business interests sufficient to deny her unemployment benefits,
I would reverse the trial judge's decision.
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