COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia
THOMAS M. GERNI
MEMORANDUM OPINION *
v. Record No. 0146-95-3 BY JUDGE SAM W. COLEMAN III
DECEMBER 12, 1995
VIRGINIA EMPLOYMENT COMMISSION, ET AL.
FROM THE CIRCUIT COURT OF GRAYSON COUNTY
Willis A. Woods, Judge
Terri E. LeGrand for appellant.
James W. Osborne, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee Virginia Employment
Commission.
No brief or argument for appellee Minneapolis
Postal Data Center.
Thomas Gerni appeals from the trial court's order affirming
the Virginia Employment Commission's decision denying him
unemployment compensation benefits. Gerni contends that the
commission erred in holding that he was discharged for misconduct
connected with his work. Code § 60.2-618(2). We hold that the
commission did not err and affirm the trial court's order.
On appeal, "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." Code § 60.2-625(A); Israel v. Virginia
Employment Comm'n, 7 Va. App. 169, 172, 372 S.E.2d 207, 209
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1988). The claimant does not dispute the commission's finding
of facts, but contends that the facts are insufficient to support
a finding of misconduct. "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.
In Branch v. Virginia Employment Comm'n, 219 Va. 609, 249
S.E.2d 180 (1978), the Supreme Court established a two-prong test
defining misconduct connected with work under Code § 60.2-618(2).
[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.
Id. at 611, 249 S.E.2d at 182. The basis for the claimant's
discharge was that he failed to follow the restrictions his
treating physician set for him while claiming total disability
from a job-related injury, and he performed unsatisfactorily and
failed to follow instructions by misdelivering mail. We hold
that either of these two reasons satisfies the prong of the
Branch test that defines misconduct as acts that are of such a
nature as to manifest a willful disregard of the employer's
legitimate business interests.
The claimant contends that he did not exceed the doctor's
restrictions because the doctor did not specifically prohibit him
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from playing tennis. Although the doctor made no specific
reference to bed rest, exercise, or activities to avoid, he
determined that the claimant suffered from a cervical
subluxation, a cervicobrachial syndrome, and muscle spasms, and
advised the claimant "to rest for two days at home." Moreover,
the doctor signed a disability certificate certifying that the
claimant was totally incapacitated from working during the period
of May 19 through May 21. In addition, the doctor informed the
employer that playing tennis would aggravate the claimant's
injury and impede the recovery process. On this record, the
claimant could not have reasonably inferred that playing tennis
was a permissible activity during the time he was supposed to be
recovering from his injury. Either his condition was such that
his absence from work was not justified, which required his
employer to pay him and the expense of his substitute, or if
justified, he failed to facilitate his recovery and his return to
work by ignoring the medical advice of his doctor. Therefore,
the facts indicate that the claimant was guilty of misconduct
either by unjustifiably being absent from work or willfully
disregarding his employer's interests by playing tennis in
contravention of the doctor's instructions "to rest at home for
two days."
The claimant's misdelivery of mail also proved a willful
disregard of the employer's interests. Despite the fact that the
postmaster orally instructed the claimant to deliver a bundle of
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mail to Route 2, Box 38 and provided him with a slip of paper
listing this address, the claimant delivered the mail to Route 1,
Box 289D. The evidence supports the commission's finding that
the claimant misdelivered the mail because he intentionally
disobeyed the postmaster's instructions. This was not the first
time the claimant had misdelivered the mail, and recurrent
violations establish deliberate and willful misconduct. See
Borbas v. Virginia Employment Comm'n, 17 Va. App. 720, 723, 440
S.E.2d 630, 632 (1994); Israel, 7 Va. App. at 175, 372 S.E.2d at
211. The claimant does not dispute that he intentionally
delivered the mail to the addressee's old address, even though
the postmaster had directed him to deliver the mail to the new
address where the addressee had moved. The claimant contends
that he disobeyed the postmaster because he was adhering to his
employer's regulations. Delivering the mail was the most
important aspect of the claimant's job. By failing to deliver
the mail properly in accordance with the postmaster's
instructions and by knowing that he was misdelivering, the
claimant willfully disregarded the duties and obligations he owed
his employer.
Because the claimant intentionally exceeded the physical
limitations the doctor imposed and misdelivered mail, we hold
1
that he was discharged for conduct connected with his work.
1
In its findings of fact, the commission noted that the
claimant had been disciplined on six different occasions prior to
May 1993. "[A]bsent direct proof of willfulness, the
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Accordingly, we affirm the trial court's order.
Affirmed.
[commission] must consider both the nature and frequency of the
acts from which willfulness is inferred." Whitt v. Ervin B.
Davis & Co., 20 Va. App. 432, 437, 457 S.E.2d 779, 781-82 (1995).
We do not consider the frequency of the claimant's prior
misconduct, however, because under the facts of this case, we
conclude that the nature of the claimant's actions--playing
tennis while supposedly incapacitated and failing to deliver the
mail in accordance with the postmaster's instructions--is
"sufficient to support the inference of willfulness." Id., 457
S.E.2d at 782.
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