COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Humphreys
BERNARD DUNCAN
MEMORANDUM OPINION *
v. Record No. 0431-00-2 PER CURIAM
SEPTEMBER 5, 2000
DATA SERVICES AMERICA AND
VIRGINIA EMPLOYMENT COMMISSION
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Charles L. McCormick, III, Judge
(Bernard Duncan, pro se, on briefs).
(Mark L. Earley, Attorney General; Lisa J.
Rowley, Assistant Attorney General, on
brief), for appellee Virginia Employment
Commission.
No brief for appellee Data Services America.
Bernard Duncan contends that the Circuit Court of Mecklenburg
County (circuit court) erred in affirming a decision of the
Virginia Employment Commission (Commission) that disqualified him
from receiving unemployment compensation benefits effective
January 3, 1999. The Commission (1) found that Data Services
America (employer) discharged Duncan for misconduct connected with
work under Code § 60.2-618(2)(a); and (2) denied Duncan's request
to present additional evidence and testimony pursuant to 16 VAC
5-80-30(B) of the Rules and General Rules Affecting Unemployment
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Compensation. Duncan further contends that the Commission's
decisions were procured by fraud and deceit; that he was denied
due process of law; and that the Commission's decisions were based
upon an incomplete record. 1 Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the circuit court's
decision. See Rule 5A:27.
I. Sufficiency of Evidence of Misconduct
"[I]n any judicial proceedings '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.'" Israel v. Virginia
Employment Comm'n, 7 Va. App. 169, 172, 372 S.E.2d 207, 209 (1988)
(citation omitted). "In accord with our usual standard of review,
we 'consider the evidence in the light most favorable to the
finding by the Commission.'" Wells Fargo Alarm Servs., Inc. v.
Virginia Employment Comm'n, 24 Va. App. 377, 383, 482 S.E.2d 841,
844 (1997) (citation omitted).
1
Duncan's opening brief contains a great deal of argument
and numerous issues presented for consideration, many of which
concern matters that are not relevant or proper for
consideration by this Court on appeal. Accordingly, we have
narrowed the issues which we will consider on appeal to those
considered by the Commission and the circuit court. In
addition, in rendering our decision we considered only that
evidence which is in the record and was properly before the
Commission when it rendered its decision.
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So viewed, the evidence established that Duncan began working
for employer as a data entry trainee on June 23, 1998. Employer
is a data entry service bureau, which processes a large quantity
of Medicaid claims. A data entry trainee must meet certain speed
and accuracy standards over a specific period of time before being
promoted to a full-fledged operator position. Once employees
reach operator status they receive incentive pay based upon their
keystrokes. Normally, employer allowed a trainee six weeks to
attempt to attain operator status. However, employer allowed
Duncan to remain in trainee status longer than usual, because it
hoped he would eventually be able to meet the speed and accuracy
requirements. Ultimately, employer terminated Duncan from his
employment on January 7, 1999.
In a December 8, 1998 letter to Jean Hofheimer, employer's
president, Duncan expressed his dissatisfaction with his pay, his
belief that he was being treated unfairly and not being permitted
to use the computer equipment with which he felt most comfortable,
his belief that when he discussed personal business with his
supervisors they divulged it to others, not receiving telephone
calls when others had been permitted to do so, and his belief that
he was being harassed and discriminated against on the basis of
his race.
As a result of the December 8, 1998 letter, Hofheimer and her
son, employer's vice-president and regional manager, met with
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Duncan on December 14, 1998. They explained issues of pay and
tried to resolve Duncan's concerns regarding discrimination and
harassment. Duncan did not seem to agree with what he was told,
but he did not object either.
Duncan did not mention these matters again until January 4,
1999, when he sent employer another letter. In that letter,
Duncan raised some of the same issues he had raised in the
December 8, 1998 letter, concerning his pay, the type of computer
he was working on, and promotion to operator status. Duncan's
January 4, 1999 letter also contained the following language:
I am going to tell you what my intentions
are. First of all, I am going to my friend
in Richmond, who works for the IRS. Then, I
am going to the EEOC and the Labor Board,
and the Better Business Bureau. And, if you
don't restitute me, I will see you in civil
court. I am not playing one bit.
You are using people in this "shop". How
many have you used is the question? This is
tantamount to fraud, tax evasion, grand
larceny for the money you have pilfered from
workers like me and whatever other
violations. I want mine with interest. You
don't care about me because, if you did, I
wouldn't be going through this now. I am
speaking for Bernard Duncan only, but if you
don't do the right thing, it will include
any and everybody whoever worked there. I
want my money and I mean it.
Hofheimer perceived Duncan's January 4, 1999 letter as
extremely threatening. As a result, on January 7, 1999, Hofheimer
sent Duncan a letter terminating his employment. Hofheimer
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testified that the sole reason for Duncan's termination was the
tone of his January 4, 1999 letter.
In Hofheimer's January 7, 1999 letter, she informed Duncan as
follows:
I can only conclude that you and DSA will
never arrive at a solution to your perceived
problems. You have been provided training
and opportunity just as all other employees
of the company. I realize that you do not
see it that way, but believe me, the company
has no desire to keep keyers from making
operator status.
Hofheimer also wrote:
I do not understand how you arrived at some
of your conclusions and accusations, but as
noted above, after trying to reason with
you, I feel that further attempts to resolve
your issues would be futile. Given the tone
of your letter, your further employment
would be disruptive to DSA's operation.
Hofheimer testified that she believed, based upon Duncan's
January 4, 1999 letter, that he was accusing employer of "running
a racket," of trying to prevent Duncan from obtaining operator
status, of discrimination, and of several felony offenses,
including grand larceny and tax evasion. She stated that employer
had tried to resolve Duncan's concerns in the December 14, 1998
meeting, but to no avail. She was also concerned, based upon the
contents of the letter, that Duncan would involve other employees
with his problems, causing disruption of employer's business.
Employer's "General Rules and Policies," which Duncan was
aware of, prohibited employees from "[c]reating an oral or written
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statement defaming, ridiculing, degrading, or otherwise
discrediting the company . . . ." The policy also prohibited
employees from "[t]hreatening, intimidating, coercing, harassing
and insulting another employee at any time" or from committing
"[b]ehavior that is disruptive to the work of others." The policy
made it clear to the employee that engaging in such conduct could
be grounds for termination from employment.
[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). "Whether an employee's behavior constitutes
misconduct . . . is a mixed question of law and fact reviewable by
this court on appeal." Israel, 7 Va. App. at 172, 372 S.E.2d at
209.
When viewed in a light most favorable to the Commission and
employer, the record establishes that the threatening and
accusatory tone of Duncan's January 4, 1999 letter, which
contained very serious and at that time, unsubstantiated and
defamatory allegations against employer, demonstrated a deliberate
and willful disregard of Duncan's duties and obligations to
employer which were designed to protect its legitimate business
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interests. Accordingly, Duncan's actions constituted misconduct
connected with work.
"Once the employer has borne the burden of showing misconduct
connected with the work, . . . the burden 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 on reh'g en banc, 9 Va. App. 225, 385
S.E.2d 247 (1989). Whether a claimant's evidence sufficiently
mitigates his behavior so as to avoid disqualification for
benefits is a question of fact for the Commission. See Britt v.
Virginia Employment Comm'n, 14 Va. App. 982, 986, 420 S.E.2d 522,
525 (1992).
The Commission was not persuaded by Duncan's evidence of
mitigating circumstances. The record supports the Commission's
finding that employer discharged Duncan for misconduct connected
with work and that Duncan failed to present sufficient evidence in
mitigation. Accordingly, the Commission did not err in
disqualifying him from receiving unemployment benefits.
II. Additional Evidence
Duncan made a motion before the Commission during the appeals
process requesting that it consider additional documentary
evidence and witness testimony. Specifically, Duncan requested
that the Commission consider employer's written policy pertaining
to "operator status" and "excused and unexcused absences,"
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Duncan's complete file, including his employment application and
W-4 forms, computerized results from pre-employment typing tests
taken by Duncan, and documentation as to how employer calculated
the rate of pay for employees who worked on North Carolina claims
and for employees who worked on Virginia claims. In addition,
Duncan requested that several co-workers be called to testify
regarding hiring procedures, production, and pay issues.
The Commission denied Duncan's request, finding that he had
not satisfied the criteria contained in 16 VAC 5-80-30(B) for the
receipt of additional evidence. Specifically, the Commission
found that the additional evidence was not material to the
substantive issues in the case, or if received, would not have
been likely to produce a different result, and the record prepared
by the Appeals Examiner was sufficient to enable the Commission to
make proper, accurate, and complete findings of fact and
conclusions of law.
The Commission's findings and conclusions are fully supported
by the record. Regardless of whether the commission ruled on the
admissibility of the evidence in question during the initial
stages of the proceedings or during the appeals process, we find
that the Commission did not abuse its discretion in refusing to
consider the evidence. The additional evidence was not material,
relevant, or necessary to the Commission's decision on the
substantive issues in this case. Moreover, even if received, the
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additional evidence would not have likely produced a different
result. Accordingly, the commission did not err in refusing to
consider it.
III. Fraud/Due Process/Incomplete Record
We find no basis in fact or law for Duncan's unsubstantiated
allegations that the decisions of the circuit court or the
Commission's Deputy, Appeals Examiner, or Special Appeals Examiner
were somehow procured by fraud or deceit, or that the circuit
court's or the Commission's employees and judges were somehow
biased against Duncan or predisposed to rule in favor of employer.
In addition, we find no merit in his argument that "the file [or
record] is 'incomplete'" or that he was denied due process of the
law. On the contrary, Duncan and employer were afforded a
reasonable opportunity for a full and fair evidentiary hearing on
his claim for unemployment benefits pursuant to the procedures
established by statutes and regulations.
For these reasons, the judgment of the circuit court is
affirmed. 2
Affirmed.
2
We deny the Commission's motion to dismiss Duncan's
appeal.
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