COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Humphreys
GEORGE O. GARLAND
MEMORANDUM OPINION *
v. Record No. 0433-00-3 PER CURIAM
AUGUST 8, 2000
VIRGINIA EMPLOYMENT COMMISSION
AND
MRS. GILES COUNTRY KITCHEN, INC.
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
(Renae Reed Patrick; Virginia Legal Aid
Society, Inc., on briefs), for appellant.
(Mark L. Earley, Attorney General; Robert L.
Walker, Assistant Attorney General; Lisa J.
Rowley, Assistant Attorney General, on
brief), for appellee Virginia Employment
Commission.
(Frank K. Friedman; John Cotton Richmond;
Woods, Rogers & Hazlegrove, PLC, on brief),
for appellee Mrs. Giles Country Kitchen,
Inc.
George O. Garland contends the trial court erred in
affirming a decision of the Virginia Employment Commission
(Commission) that disqualified him from receiving unemployment
benefits on the ground that he was discharged from his
employment for misconduct connected with work under Code
§ 60.2-618(2). Garland asserts that the trial court 1) abused
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
its discretion by not allowing him to amend his petition for
judicial review; 2) erred by failing to consider alleged fraud;
3) erred in refusing to remand the case to the Commission for
further proceedings; 4) erred by upholding the Commission's
decision; and 5) erred in not finding a prima facie case of
fraud. Pursuant to Rule 5A:21(b), the Commission raises the
additional question of whether the trial court erred by
concluding that the court had the discretionary authority to
grant Garland's request to amend the petition for judicial
review. Upon reviewing the record and briefs of the parties, we
conclude this appeal is without merit. Accordingly, we
summarily affirm the circuit court's decision. See Rule 5A:27.
Background
Garland worked for Mrs. Giles Country Kitchen (employer)
from March 25, 1991 through July 13, 1995. The employer had a
progressive discipline system of which Garland was aware. Under
this system, an employee would receive written warnings in the
event of attendance problems, followed by a three-day suspension
and, in the event of further problems, termination of his
employment.
In the several months preceding Garland's discharge, the
employer had issued him a number of written warnings concerning
attendance problems, primarily tardiness. After Garland was
tardy on July 6, 1995, the employer suspended him for three days
beginning on July 10.
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Garland normally worked making ham and cheese spread for
the employer, but when Garland returned from his suspension on
Thursday July 13, supervisor Dale Braxton assigned him to a
different job. Although Garland's normal assignment was not
listed on the Friday production schedule, Braxton told Garland
on Thursday that Garland would continue working on the new job
on Friday. Braxton also testified that it was not customary for
employees to check the production schedule to see if they would
be working. Garland did not show up for work on July 14, nor
did he call the employer to report his absence.
Plant Supervisor Barry Hunt testified that Charles Davis
and Donny Ray Anderson reported overhearing Braxton tell Garland
that he would be working on Friday. In a letter to the
employer's human resources manager, Hunt indicated that Davis
also reported hearing Garland complain about working Thursday
and Friday on the new assignment.
The employer discharged Garland on July 17 as a result of
his July 14 absence.
Garland denied being told by Braxton that he had to work
Friday and claimed that he thought he was off that day. Garland
admitted that he had been working on Fridays that summer,
including the previous Friday. In his August 1, 1995 statement
to the Commission claims deputy, Garland reported that
"[n]ormally we don't work on Fridays."
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Garland denied complaining to any co-workers about having
to perform the new job and testified that Davis was intoxicated
on July 13. In his August 1 statement to the claims deputy,
Garland stated: "They claim they had a witness that heard the
supr. tell me to work. This so-called witness was drunk."
Following a September 20, 1995 hearing, the appeals
examiner qualified Garland to receive unemployment benefits.
The employer appealed and Garland appeared before the Commission
special examiner on January 23, 1996. At that hearing, Garland
referred to "newly discovered evidence," which Garland
represented tended to prove fraud on the part of the employer.
At the request of the special examiner, on January 25,
Garland submitted to the Commission an affidavit from Davis. In
the affidavit, Davis stated that he worked with Garland on July
13, 1995, that he did not overhear Braxton tell Garland that
Garland was to work on Friday, and that he never told any Mrs.
Giles employee that he had overheard such a conversation.
The special examiner issued his decision on February 29,
1996. The decision made no reference to the Davis affidavit,
but the special examiner did find that two of Garland's
co-workers "reported that the claimant complained to them about
having to work on Friday July 14, 1995. 1 There was no specific
1
There is no evidence in the record supporting the finding
that two co-workers heard this statement. The employer's
evidence was that one employee, Davis, reported this particular
remark.
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finding in the Commission decision that any employees overheard
Braxton tell Garland to report to work on Friday, or that any
employees reported overhearing this to the employer.
In reversing the appeals examiner and disqualifying Garland
from receiving unemployment benefits, the special examiner held:
[T]he claimant's supervisor told him to come
to work specifically because he was in
training for a new duty. . . . [T]he
claimant knew that he had been assigned a
new duty. Further, the human resource
officer's investigation, although based on
the unsworn testimony of two of the
claimant's co-workers that the claimant
complained about having to work on Friday,
leaves little doubt that the claimant knew
he had to work that day.
The special examiner specifically rejected Garland's argument
that he did not know he had to work because he was not on the
production schedule, noting that Garland had been working
Fridays recently and "there was no evidence in the record to
show that he was not expected to work."
Garland filed a timely petition for judicial review on
March 20, 1996. In that petition, Garland contended the
Commission's decision was not supported by the evidence, that
the Commission had ignored the appeals examiner's credibility
findings, and that the Commission had improperly placed the
burden of proof on Garland. He did not allege that any fraud
had occurred and he did not request that the matter be remanded
back to the Commission.
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On April 11, 2000, Garland filed an amended petition for
review wherein he alleged that 1) he was denied a fair hearing
before the special examiner because the special examiner had
made no mention of Davis' affidavit; 2) the special examiner had
improperly relied on the employer's hearsay evidence; and 3) the
employer had committed fraud upon the Commission by submitting
the employer's "incorrect" evidence regarding Davis' statements,
which was refuted by Davis' affidavit.
At a January 11, 2000 hearing, the trial court rejected the
Commission's argument that the court could not permit Garland to
amend the petition. But the court nevertheless denied Garland's
motion to amend the petition. The court also found sufficient
"facts in the record to support the final decision of the
[Commission]."
Motion to File an Amended Petition
"Code § 60.2-625 sets out in elaborate detail the
procedures intended to govern judicial review of compensation
determinations." Shuler v. Virginia Employment Comm'n, 14 Va.
App. 1013, 1016, 420 S.E.2d 257, 259 (1992) (holding that,
because the Virginia Employment Compensation Act provided, in
great detail, the procedures governing appeals of Commission
decisions, such appeals were not governed by the Virginia
Administrative Process Act). And generally, rules of civil
procedure do not apply to administrative proceedings unless the
administrative rules so provide. See Broomfield v. Jackson, 18
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Va. App. 854, 858, 447 S.E.2d 880, 882 (1994); cf. Hoyle v.
Virginia Employment Comm'n, 24 Va. App. 533, 537-38, 484 S.E.2d
132, 134 (1997) (holding that statutorily granted appellate
jurisdiction necessarily implies the authority to remand a case
to a lower tribunal for further proceedings).
Code § 60.2-625 does not provide for amending a petition
after the appeal period has expired and it does not expressly
incorporate Rule 1:8, which is a rule of general civil
procedure. 2 Nor is granting permission to amend a pleading
outside the statutory appeal period an implicit right of an
appellate tribunal. Accordingly, since the trial court did not
have the authority to grant Garland permission to amend his
petition for judicial review outside the thirty-day appeal
period granted by Code § 60.2-625, Garland's assertion that the
trial court abused its discretion is moot. And given that the
trial court denied Garland's motion to amend, the trial court's
error in concluding that it had the authority to permit the
amendment was harmless.
After-Discovered Evidence
Garland contends the special examiner erred by not
considering the Davis affidavit, which Garland asserts was
after-discovered evidence.
2
Rule 1:8 permits amendments to pleadings by leave of
court.
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"No ruling of the trial court . . . will be considered as a
basis for reversal unless the objection was stated together with
the grounds therefor at the time of the ruling, except for good
cause shown or to enable the Court of Appeals to attain the ends
of justice." Rule 5A:18 (emphasis added).
At the January 23 hearing, the special examiner did not
rule on whether he would accept the Davis affidavit, and the
special examiner's decision makes no reference to that evidence.
When a party seeks to introduce evidence, it is his
responsibility to obtain a ruling from the tribunal on its
admissibility. If the party fails to do this, then "there is no
ruling for us to review on appeal." Ohree v. Commonwealth, 26
Va. App. 299, 308, 494 S.E.2d 484, 489 (1998); see Taylor v.
Commonwealth, 208 Va. 316, 324, 157 S.E.2d 185, 191 (1967)
(finding that a defendant's objection was not preserved for
appeal where he did not obtain a ruling from the court).
Accordingly, this issue has not been preserved for appeal.
Even if we assume that the special examiner rejected the
Davis affidavit, Garland still cannot prevail. A party's
request to present additional evidence will be granted only if
the new evidence "could not have been presented at the prior
hearing through the exercise of due diligence, and is likely to
produce a different result at a new hearing." 16 VAC
5-80-30(B)(1). The Commission may also take additional evidence
if "[t]he record of the proceedings before the appeals examiner
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is insufficient to enable the commission to make proper,
accurate, or complete findings of fact and conclusions of law."
16 VAC 5-80-30(B)(2).
It is apparent from the record that the person to whom
Garland was referring in his August 1 statement to the claims
deputy was Davis. Garland cannot claim, therefore, to have
exercised due diligence in obtaining the statement from Davis.
Although he did not have the benefit of the Davis affidavit at
the appeals examiner's hearing, Garland was able to
cross-examine the employer's witnesses. See Peet v. Peet, 16
Va. App. 323, 327, 429 S.E.2d 487, 490 (1993) (distinguishing
intrinsic from extrinsic fraud because a party can "ferret out
and expose false information presented to the trier of fact"
through cross-examination). And the special examiner did not
make any findings of fact that specifically contradicted Davis'
affidavit. Finally, the record was sufficient for the
Commission to decide this case. Accordingly, Garland failed to
satisfy the requirements for submitting additional evidence.
Request to Remand
Garland contends the circuit court erred by not remanding
the case to the Commission in light of the evidence he proffered
of fraud. Garland concedes that he has alleged intrinsic, not
extrinsic, fraud.
If an aggrieved party "alleges in his petition for review
that the [Commission] decision was procured by extrinsic fraud
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committed by a successful party" and presents prima facie
evidence of such fraud, then "the circuit court shall remand the
case to the Commission for a hearing on the issue." Jones v.
Willard, 224 Va. 602, 608, 299 S.E.2d 504, 508 (1983). 3
In his initial petition for judicial review, Garland did
not allege that the decision against him had been procured by
fraud and he did not request that the trial court remand the
case to the Commission for further proceedings. He did not
exercise due diligence in obtaining the Davis affidavit, and the
record was otherwise sufficient for the circuit court to
adjudicate this matter. In addition to the fact that the court
denied the motion to amend the petition, we have ruled that the
court did not have the authority to consider the amended
petition. Thus, the court had no basis for remanding the case
to the Commission. 4
3
In Jones, the petitioner alleged fraud and specifically
sought reversal of the Commission decision or a remand for
further proceedings. See Jones, 224 Va. at 604, 299 S.E.2d at
506. Our decision in Hoyle does not reflect whether the
petitioner had sought to have the matter remanded to the
Commission. See Hoyle, 24 Va. App. at 537, 484 S.E.2d at 533
(noting that the trial court remanded the case based on the
pleadings, argument of counsel, and the Commission record).
4
Garland contends in his brief that the trial court erred
in not finding that he had proved a prima facie case of intrinsic
fraud. The court did not reach that issue, however, because it
denied Garland's motion to amend the petition for judicial
review. And in light of our holding that the circuit court was
without authority to permit the amended petition, we do not reach
the issue either.
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Sufficiency of the Evidence
"Initially, we note that in 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). "The commission, not this Court, is charged with
resolving questions of witness credibility." Britt v. Virginia
Employment Comm'n, 14 Va. App. 982, 986, 420 S.E.2d 522, 525
(1992).
Code § 60.2-618(2) provides that a claimant will be
disqualified from receiving unemployment benefits if he is
discharged from employment for misconduct connected with work.
[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.
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Branch v. Virginia Employment Comm'n, 219 Va. 609, 611, 249
S.E.2d 180, 182 (1978). "Whether an employee's behavior
constitutes misconduct, however, 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.
Garland had been warned about being late to work and
leaving work without permission. Two days before his July 14
absence, Garland completed a three-day suspension for tardiness.
The employer's evidence, when viewed in a light most favorable
to the Commission, established that Garland intentionally missed
work on July 14 because he did not want to work with a certain
co-worker. Garland's recurrent attendance problems, coupled
with his intentional absence following so closely after a
suspension, constituted misconduct connected with work.
Garland contends the employer failed to prove misconduct
because, while the incident leading to his termination was an
unexcused absence, his prior warnings were for tardiness and
leaving work early. We disagree. Tardiness, leaving work
early, and absenteeism are all attendance-related issues.
Moreover, the evidence sufficiently proved that Garland's last
absence was volitional. Cf. Borbas v. Virginia Employment
Comm'n, 17 Va. App. 720, 723-24, 440 S.E.2d 630, 632 (1994)
(finding no misconduct where the claimant was discharged for
three unrelated instances of simple negligence).
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Finally, Garland asserts that the Commission improperly
rejected the appeals examiner's credibility determinations. But
the appeals examiner's credibility determinations were limited
to a finding that Braxton and Garland were equally believable,
and she made no reference to the witnesses' demeanor. The
special examiner did not specifically reject the appeals
examiner's credibility determination, but rather, he rejected
the conclusion that the parties' evidence was in equipoise. We
cannot conclude, therefore, that, as a matter of law, the
evidence was insufficient to support the special examiner's
findings of fact. See Virginia Employment Comm'n v. Peninsula
Emergency Physicians, Inc., 4 Va. App. 621, 626, 359 S.E.2d 552,
554 (1987).
"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).
The record supports the Commission's finding that Garland
presented insufficient evidence of mitigating circumstances.
Accordingly, the Commission did not err in disqualifying him
from receiving unemployment benefits.
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For the reasons stated above, the judgment of the circuit
court is affirmed.
Affirmed.
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