COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Willis and Senior Judge Hodges
Argued at Salem, Virginia
DONNA WHITT
v. Record No. 0969-94-3 OPINION BY
JUDGE LAWRENCE L. KOONTZ, JR.
ERVIN B. DAVIS & COMPANY, INC. and MAY 30, 1995
VIRGINIA EMPLOYMENT COMMISSION
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Nicholas E. Persin, Judge
Martin Wegbreit (Client Centered Legal Services of Southwest
Virginia, Inc., on briefs), for appellant.
Thomas R. Scott, Jr. (Terrence Shea Cook; Street, Street,
Street, Scott & Bowman, on brief), for appellee Ervin B.
Davis & Company, Inc.
James W. Osborne, Assistant Attorney General (James S.
Gilmore, III, Attorney General; John Paul Woodley, Jr.,
Deputy Attorney General; Richard L. Walton, Jr., Senior
Assistant Attorney General, on brief), for appellee Virginia
Employment Commission.
Donna Whitt (claimant) appeals a decision of the Circuit
Court of Buchanan County affirming a denial of unemployment
compensation benefits by the Virginia Employment Commission (VEC)
on the ground that she had been discharged for misconduct
connected with her employment with Ervin B. Davis & Company
(employer). See Code § 60.2-618(2). Claimant asserts that the
circuit court erred in finding that the VEC properly determined
that her poor job performance was the result of a willful
disregard for the interests of employer. We disagree and affirm
the decision of the circuit court.
Claimant worked as a secretary for employer and during the
initial term of her employment her job performance was
satisfactory. 1 In the final six to eight months of her
employment, employer noticed a "significant deterioration" in the
quality of claimant's work product. Claimant repeatedly made
similar errors when performing routine duties, which she had
previously accomplished without error. Claimant was repeatedly
counseled about her job performance during this period.
Three months prior to her termination, claimant was advised
that her continued employment was contingent upon improvement in
her job performance. Claimant's work product continued to be
unsatisfactory. On August 20, 1992, claimant's supervisor gave
her written instructions concerning a specific assignment to be
performed. Claimant completed the assignment later that day and
her work product was checked by the supervisor. The supervisor
discovered that claimant had not followed the instructions she
had been given. Claimant was offered the opportunity to resign
2
or be discharged. She elected to resign.
Claimant's initial application for unemployment benefits was
denied. On appeal, the appeals examiner determined that
1
The specific length of claimant's employment is unclear,
with evidence in the record suggesting that she worked for
employer from slightly more than two years to slightly less than
five years. The parties are in agreement that her initial job
performance was satisfactory for a substantial period of time,
exceeding eighteen months.
2
The commission found, and the parties agree, that under the
facts of this case, claimant's resignation was properly treated
as a discharge. Accordingly, this case does not involve the
issue of whether claimant voluntarily left her employment without
good cause. See Code § 60.2-618(1).
-2-
claimant's actions were not deliberate, but that her work product
had deteriorated for "some unknown reason" and awarded benefits.
Employer appealed to the VEC, which reversed this determination.
The VEC relied primarily upon Craft v. Virginia Employment
Comm'n, 8 Va. App. 607, 383 S.E.2d 271 (1989), in which this
Court upheld the denial of benefits following the discharge of a
bookkeeper, who was subsequently charged with embezzling funds,
after having been warned by her employer that her performance was
unacceptable and would need to improve. The VEC further found
that no mitigating circumstances of the employment explained the
decline in claimant's work product.
On claimant's appeal, the circuit court affirmed the
decision of the VEC, finding that Borbas v. Virginia Employment
Comm'n, 17 Va. App. 720, 440 S.E.2d 630 (1994), distinguished
unintentional behavior not constituting misconduct from repeated
or long-term acts of neglect constituting misconduct. This
appeal followed.
The issue presented by this appeal, as it was before the
circuit court, is whether as a matter of law the VEC properly
determined that claimant's poor job performance constituted
misconduct justifying a denial of unemployment benefits. The
parties do not dispute that the VEC's findings of fact are
supported by credible evidence in the record. Accordingly, those
facts are conclusive on appeal. Code § 60.2-625; see also Lee v.
Virginia Employment Commission, 1 Va. App. 82, 85, 335 S.E.2d
-3-
104, 106 (1985). Under well settled principles, we consider the
evidence in the light most favorable to the findings of the VEC
to determine whether employer met its burden of proving that
claimant was discharged for misconduct connected with her work.
See Kennedy's Piggly Wiggly Stores, Inc. v. Cooper, 14 Va. App.
701, 704-05, 419 S.E.2d 278, 280 (1992); Virginia Employment
Comm'n v. Peninsula Emergency Physicians, Inc., 4 Va. App. 621,
626, 359 S.E.2d 552, 554 (1987).
In Branch v. Virginia Employment Comm'n, 219 Va. 609, 249
S.E.2d 180 (1978), the Supreme Court established a two-pronged
test for determining the type of employee misconduct that
justifies a denial of employment benefits pursuant to Code
§ 60.2-618:
[W]hen [the employee] deliberately violates a company
rule reasonably designed to protect the legitimate
business interests of his [or her] employer, or when
[the employee's] 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 [or
she] owes his [or her] employer [denial of unemployment
benefits is proper].
Id. at 611, 249 S.E.2d at 182.
The parties agree that our concern here involves only the
second prong of the Branch definition of misconduct. A
deliberate violation of a company rule is not involved. In this
context, we agree with claimant that under Branch, when an
employee is discharged for poor performance, he or she is
entitled to unemployment compensation unless the employer shows
that the conduct resulting in the employee's discharge
-4-
constituted acts or omissions of such a nature or so recurrent as
to manifest willful disregard for the employer's interests. Id.
Moreover, the record must establish that an employee's poor
performance did not result merely from inexperience or an
inability to perform the task assigned. See Borbas, 17 Va. App.
at 723, 440 S.E.2d at 632 (holding that the record should contain
evidence that the employee had demonstrated an ability to perform
adequately).
We further agree with claimant that in construing Branch,
this Court has held that absent direct proof of willfulness, the
VEC must consider both the nature and frequency of the acts from
which willfulness is inferred. Israel v. Virginia Employment
Comm'n, 7 Va. App. 169, 176, 372 S.E.2d 207, 211 (1988). We
disagree, however, that both the nature and the frequency of the
conduct must be detrimental to the employer's interests. Rather,
in Israel we held that the facts of the individual case would
dictate whether individually or in combination, the nature and
frequency of poor performance were sufficient to support the
inference of willfulness. Id.
Accordingly, we will assume, without deciding, that the
nature of claimant's conduct was not alone sufficient to support
an inference of willfulness. 3 However, in light of claimant's
3
The VEC identified errors in preparing routine
correspondence, such as incorrect salutations, improper
references, improper grammar, and failure properly to include
enclosures.
-5-
prior satisfactory performance of identical duties and the
provision of counseling and warnings received from employer, we
hold that the nature of claimant's lapses in satisfactory
performance, combined with their frequency, supports the VEC's
determination that the decline in her job performance was the
result of a willful disregard of the interests of her employer
and, thus, constituted misconduct connected with her employment.
Finally, we turn to claimant's further assertion, at oral
argument of this appeal, that the absence of evidence in the
record negating alternative explanations for her decline in
performance prohibited the VEC from concluding that such decline
was attributable to willfulness rather than some other
unexplained cause. We disagree. Employer established its prima
facie case by showing that the nature and frequency of claimant's
lapses in performance were contrary to its interests and, thus,
inferentially willful.
"'[A p]rima facie [case consists of] evidence which on its
first appearance is sufficient to raise a presumption of fact or
establish[ed] the fact in question unless rebutted. It imports
that the evidence produces for the time being a certain result,
but that the result may be repelled.'" Commonwealth v. Dalton,
11 Va. App. 620, 623, 400 S.E.2d 801, 803 (1991)(habitual
offender adjudication appeal citing standard for civil
proceedings)(quoting Babbit v. Miller, 192 Va. 372, 379-80, 64
S.E.2d 718, 722 (1951)). Where the party having the burden of
-6-
proof presents a prima facie case, the burden of going forward
with the evidence shifts to the opposing party. While the burden
of proof remains unchanged, the party against whom a prima facie
case exists can avoid the presumed result only by producing
evidence to explain to the satisfaction of the trier of fact why
the prima facie evidence is in error or is otherwise not subject
to the appropriate standard of law applicable to such facts.
Such countervailing evidence is sufficient if it outweighs the
prima facie case or leaves the ultimate question in equipoise.
See Pullen v. Fagan, 204 Va. 601, 604, 132 S.E.2d 718, 720
(1963)(standard applicable to civil proceedings); Interstate
Veneer Co. v. Edwards, 191 Va. 107, 113-14, 60 S.E.2d 4, 7-8
(1950)(same).
We hold that the evidentiary rule shifting the burden of
going forward with the evidence to the opposing party upon
establishment of a prima facie case by the party with the burden
of proof applies in quasi-judicial administrative proceedings
before the VEC.
Here, the record shows that claimant in fact attempted to
rebut the employer's claim that her decline in performance was
attributable to willful indifference to her duties by asserting
that her duties had become more onerous. The VEC expressly
rejected that assertion, finding that her duties had been the
same throughout her employment.
Claimant argues that other explanations, such as personal
-7-
problems, illness, or family problems, might also explain her
decline in performance and that the absence of evidence in the
record disproving such explanations defeats the inference of
willfulness. We disagree. It was not part of employer's burden
of proof to disprove the existence of such causes. Rather, once
the burden of going forward with the evidence had shifted to her,
claimant was required to produce credible evidence of such causes
to rebut employer's prima facie case. On appeal, she cannot rely
on the mere possibility that such explanations might have been
proven before the commission. Cf. Fordham v. Commonwealth, 13
Va. App. 235, 239, 409 S.E.2d 829, 831 (1991)(reasonable
hypothesis presented on appeal to disprove result of a criminal
trial must flow from the evidence adduced at trial rather than
the imagination of the appellant).
For these reasons, the decision of the circuit court
upholding the determination of the VEC is affirmed.
Affirmed.
-8-