COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
PAUL E. GROVES
MEMORANDUM OPINION *
v. Record No. 1908-01-2 PER CURIAM
DECEMBER 11, 2001
VIRGINIA EMPLOYMENT COMMISSION AND
NAVISTAR INTERNATIONAL TRANSPORTATION d/b/a
INTERNATIONAL TRUCK AND ENGINE CORPORATION
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
(Paul E. Groves, pro se, on briefs).
(Randolph A. Beales, Attorney General;
Richard B. Zorn, Senior Assistant Attorney
General; John B. Purcell, Jr., Assistant
Attorney General, on brief), for appellee
Virginia Employment Commission.
No brief for appellee Navistar International
Transportation d/b/a International Truck and
Engine Corporation.
Paul E. Groves appeals a final order of the Circuit Court of
Chesterfield County affirming the decision of the Virginia
Employment Commission (VEC) to disqualify him from receiving
unemployment benefits. Based upon the administrative record of
proceedings and argument, the circuit court held that evidence
supported the VEC's findings of fact and that the VEC correctly
concluded, as a matter of law, that Groves was discharged for
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
misconduct in connection with his work for Navistar International
Transportation d/b/a International Truck and Engine Corporation
(Navistar) and disqualified for benefits under Code § 60.2-618(2).
Groves appeals that decision, and he contends the circuit court
erred in finding that the VEC properly relied upon Exhibit 9 as
part of the record. Upon reviewing the record and the briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. See
Rule 5A:27.
ISSUES BARRED ON APPEAL
Grove lists ten issues on appeal. However, most of those
issues were not presented to the circuit court for its review.
Those issues are: whether the deputy of the VEC erred in finding
Groves was qualified for benefits in November 1999; whether the
appeals examiner of the VEC erred in affirming the deputy's
decision; whether the VEC special examiner erred in allowing a
hearing to re-open the case on appeal; whether Navistar showed
good cause to re-open the hearing; whether the appeals examiner
erred in affirming the deputy's decision; and whether the appeals
examiner controlled the order of proof at the April 27, 2000
hearing pursuant to 16 VAC 5-80-20. The record shows that these
issues were not raised in the circuit court. Accordingly, these
issues are procedurally barred on appeal. Whitt v. Race Fork Coal
Corp. and Virginia Employment Comm'n, 18 Va. App. 71, 74, 441
S.E.2d 357, 359 (1994); Rule 5A:18.
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BACKGROUND
Groves was terminated from employment with Navistar in
October 1999 for violating the company's sexual harassment policy.
Groves applied for unemployment benefits, and a deputy determined
Groves was qualified to receive unemployment benefits. Navistar
appealed that decision, and on December 27, 1999 a hearing was
held before an appeals examiner. Navistar did not appear at the
hearing. The appeals examiner affirmed the decision of the
deputy.
Navistar appealed the decision of the appeals examiner and
requested to re-open the hearing before the appeals examiner. By
letter dated March 10, 2000 the special examiner granted
Navistar's request and remanded the case to "First Level Appeals"
for the purpose of conducting another hearing "so as to take
additional testimony and evidence." The letter stated, "[T]he
record of both hearings shall then constitute the record for the
issuance of a new decision."
On April 27, 2000 the second hearing was held before the
appeals examiner. On May 15, 2000, the appeals examiner affirmed
the deputy's determination that Groves was qualified to receive
unemployment benefits. Navistar appealed the decision of the
appeals examiner to the Commission. The Commission reversed the
decision of the appeals examiner, finding that Groves was
disqualified for unemployment compensation. Groves appealed the
Commission's decision to the circuit court, and the circuit court
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affirmed the decision of the Commission. Groves filed a motion
for reconsideration in the circuit court, which the court denied.
Groves appeals the decision of the circuit court.
"On review, [we] must consider the evidence in the light most
favorable to the finding by the Commission." Virginia Employment
Comm'n v. Peninsula Emergency Physicians, Inc., 4 Va. App. 621,
626, 359 S.E.2d 552, 554-55 (1987). Code § 60.2-625 sets forth
the standard of "judicial review" for appeals from the decisions
of the VEC. "[I]n such cases . . . the Commission's findings of
fact, if supported by evidence and in the absence of fraud, are
conclusive." Lee v. Virginia Employment Comm'n, 1 Va. App. 82,
85, 335 S.E.2d 104, 106 (1985). Upon our review, we conclude that
the VEC's findings of fact are supported by evidence and are
therefore binding on appeal.
The evidence showed that Navistar had a written policy
prohibiting sexual harassment by employees in the workplace.
Groves acknowledged he was aware of the policy.
Groves was a parts sales manager for Navistar. He had been
employed with the company for fifteen years. On September 29,
1999 Misty Gray, who also worked in parts sales, accompanied
Groves on a series of sales calls. Gray had been employed with
Navistar for about one and one-half years. When Groves and Gray
returned from the sales calls, other employees of Navistar could
see that Gray was upset. Gray reported that Groves made verbal
and physical sexual advances toward her that day. Gray reported
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that Groves told her he didn't "mind watching [her] bend over."
Gray also stated that Groves later parked the car, kissed her, and
touched her despite her protests.
John Martinicky, the manager of corporate security for
Navistar, interviewed Groves concerning Gray's allegations.
Groves admitted to Martinikcy that he told Gray he liked to "watch
her bend over." Gray had indicated that this remark made her feel
uncomfortable. Groves testified at the hearing that he did not
recall making the statement to Martinicky that he told Gray he did
not mind seeing her bend over.
The special examiner found Groves' credibility was
"substantially compromised" and that Gray's testimony was credible
concerning the incidents. He based that finding not only on
Gray's testimony at the April 27, 2000 hearing, but also on the
fact that she took prompt steps to bring the matter to the
attention of management and the police. The special examiner
found that Groves was disqualified for unemployment compensation
because he was discharged from work due to misconduct in
connection with work. The special examiner also referenced
Exhibit 9, a copy of Martinicky's notes concerning interviews he
conducted with Groves and Gray after the incident, in his
decision.
At the hearing in the circuit court, Groves argued that
Exhibit 9 was not properly part of the record for consideration by
the special examiner. In its May 15, 2001 letter opinion, the
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circuit court found that the issue of whether the special examiner
erred in considering Exhibit 9 was not properly before the court
because Groves had not pled this issue in his Petition for
Judicial Review. In an alternative finding, the circuit court
found that Exhibit 9 was properly part of the record because
Groves had ample opportunity to review the documents and because
Groves' counsel had the opportunity to cross-examine Martinicky,
the author of the documents, at the hearing. Accordingly, the
circuit court held that the VEC did not err in considering Exhibit
9 as part of the record.
ANALYSIS
I. Exhibit 9
Appellant argues Exhibit 9 was not properly considered by the
VEC as part of the record in the case because the page in the
transcript of the April 27, 2000 hearing on which the exhibits are
listed states: "(None of the exhibits were officially entered
into the record.)." However, assuming the issue was properly
before the circuit court, the record indicates that the documents
were accepted by the appeals examiner and that Groves did not
object to the admission of Exhibit 9 into the record at the April
27, 2000 hearing. Moreover, Groves' counsel indicated he had "had
a chance to review" the document, and he relied on the document in
his cross-examination of Martinicky. At the end of the hearing,
the appeals examiner asked Groves' counsel if he had any
objections to information that was submitted at the hearing.
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Groves' counsel replied, "My only objection to . . . the summation
of the conversation with Mr. Martinicky is his opinion at the
bottom of the last page." Counsel indicated that he believed the
last page of the exhibit contained a sentence regarding
Martinicky's opinion that Groves was being untruthful in the
interview. Groves' counsel asked that the appeals examiner
disregard that statement only. When the appeals examiner asked
Groves' counsel if he had any other objections, counsel replied,
"No, Sir." The appeals examiner then stated, "I'm going to submit
that entire document as Exhibit Number 9 . . . ." Accordingly,
Groves did not object to the exhibit becoming part of the record
in the case. See Rule 5A:18.
Moreover, despite the notation in the transcript that no
exhibits were "officially" made part of the record, Exhibit 9 was
placed in the VEC's file and became part of the VEC record for
purposes of the VEC's determination of the claim. Furthermore,
the March 10, 2000 letter remanding Groves' case to the first
level of appeals for the purpose of conducting the second hearing
on April 27, 2000 stated that the record of that hearing, in
addition to the record of the previous hearing, would constitute
the record for the issuance of a new decision. Therefore, the
exhibit was a part of the record and the documents contained
therein were properly considered by the VEC in making its findings
of fact. This action of accepting the exhibit into the record,
coupled with Groves' admission that he had had an opportunity to
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review the documents, Groves' use of the documents in
cross-examination, and his failure to object to the admission of
the documents, indicates that Groves' right to a fair hearing was
not denied. See Snyder v. Virginia Employment Comm'n, 23 Va. App.
484, 488-89, 477 S.E.2d 785, 787 (1996). If Groves had chosen to
do so, at the April 27, 2000 hearing he could have stated his
general objections to the exhibit or statements therein, and
offered rebuttal evidence concerning what he contended were
inaccuracies in the exhibit. However, other than the objection to
the last page of the document, he did not object to the overall
admission of the evidence. Accordingly, the circuit court did not
err in ruling that the VEC properly considered Exhibit 9 as part
of the record.
II. Disqualification for Benefits
Code § 60.2-618(2) provides for disqualification from receipt
of unemployment benefits if the VEC finds that the employee was
discharged for work misconduct. "[T]o establish misconduct [the]
employer ha[s] the burden of proving that the [employee]
deliberately or willfully violated a company rule." Bell Atlantic
v. Matthews, 16 Va. App. 741, 745, 433 S.E.2d 30, 32 (1993).
[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
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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). "[O]nce the employer has borne [this]
burden . . . [it] shifts to the employee to prove circumstances
in mitigation of his or her conduct." 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). Absent evidence
to "explain or justify" such misconduct and "show mitigating
circumstances, the commission must find that benefits are barred."
Id. "'Whether an employee's behavior constitutes misconduct,
however, is a mixed question of law and fact reviewable by this
court on appeal.'" Wells Fargo Alarm Servs., Inc. v. Virginia
Employment Comm'n, 24 Va. App. 377, 384, 482 S.E.2d 841, 844
(1997) (citation omitted).
The special examiner found that Navistar's policy
prohibiting sexual harassment at work was reasonably designed to
protect legitimate business interests. Furthermore, the special
examiner believed the evidence presented by Gray and the other
Navistar employees and did not accept Groves' testimony denying
the incident. In making the credibility determination, the
special examiner pointed to Groves' interview with Martinicky
wherein Groves originally admitted that he made the comment to
Gray. The determination of a witness' credibility is within the
fact finder's exclusive purview. See Goodyear Tire & Rubber Co.
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v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). The
credibility finding is supported by evidence in the record.
Furthermore, the special examiner found that Groves occupied a
supervisory position with the company which acted as an
aggravating circumstance for his conduct.
Groves presented no mitigation evidence. He denied making
the comment, and he denied that he touched Gray. Therefore, we
cannot say as a matter of law that Groves met his burden of
proving mitigating circumstances. Accordingly, we conclude that
the special examiner's findings of fact as to Groves' credibility,
as well as Groves' failure to present sufficient evidence of
mitigating circumstances to avoid disqualification for
work-related misconduct, are supported by credible evidence. In
light of the evidence presented before the VEC, we cannot say the
record as a whole would lead a reasonable mind necessarily to a
different conclusion than that reached by the VEC.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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