Doe v. Va. Emp't Comm'n
| Decision Date | 26 July 2022 |
| Docket Number | 0734-21-4 |
| Parties | JOHN DOE v. VIRGINIA EMPLOYMENT COMMISSION, ACES GROUP LLC AND INSPERITY PEO SERVICES |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY JUDITH L. WHEAT, JUDGE
John Doe, pro se.
Elizabeth B. Peay, Senior Assistant Attorney General (Mark R Herring, [1] Attorney General; Donald D Anderson, Deputy Attorney General; Heather Hays Lockerman Senior Assistant Attorney General and Chief, on brief), for appellee Virginia Employment Commission.
No brief or argument for appellees Aces Group LLC and Insperity PEO Services
Present: Judges O'Brien, AtLee and Senior Judge Clements Argued by videoconference
Appellant John Doe appeals the circuit court's order affirming the decision of the Virginia Employment Commission (the "VEC" or "Commission"), which denied Doe unemployment benefits after concluding that he had been discharged for misconduct. On appeal, Doe raises thirty assignments of error. His assignments of error can be loosely categorized as follows: (1) the VEC's processes and procedures violated his right to due process, (2) the circuit court erred by not allowing him to present evidence of fraud committed by the VEC and employer, (3) the circuit court erred by not finding bias on the part of the VEC's agents, (4) the circuit court erred by affirming the VEC's decision that he had been discharged for misconduct, (5) the circuit court erred by not ruling on certain motions and by refusing to admit certain evidence, (6) the circuit court denied Doe due process, and (7) the circuit court erred by not finding misconduct on the part of the VEC's counsel. For the following reasons, we affirm the decision of the circuit court.
We "must 'consider the evidence in the light most favorable to the finding by the Commission.'" Smith v. Va. Emp. Comm'n, 59 Va.App. 516, 519 (2012) (quoting Va. Emp. Comm'n v. Trent, 55 Va.App. 560, 565 (2010)). "If the commission's findings are supported by the evidence, they are binding on appeal." Trent, 55 Va.App. at 565 (quoting McNamara v. Va. Emp. Comm'n, 54 Va.App. 616, 624 (2009)).
So viewed, the evidence shows that Insperity PEO Services employed Doe from August 13, 2018, through August 7, 2019. Insperity is an employment organization that places employees with various clients. It placed Doe with Aces Group, LLC, a government contractor. Doe worked full time at Aces Group.
When Doe started with Aces Group, the company gave Doe an employee handbook that set out all the company's policies. One such policy required employees to complete time sheets before the end of the reporting period and, ideally, to complete them daily.
On July 31, 2019, one of Doe's supervisors sent him a text message asking him to complete his time sheets. The text also informed Doe that if he did not complete his time sheet by 8:00 p.m. that evening, the supervisor would submit payroll without his hours.[2] She also indicated that she has had to remind him every pay period and that they needed to meet the following week to discuss the issue.
Doe responded at 8:03 p.m. saying that he had submitted his time sheets. The supervisor again texted him that a meeting was necessary. Doe texted the supervisor that he did not think a meeting was required because he did not believe time sheets were required for the type of fixed-price contracts that he worked on. Doe asked where such a requirement was stated and commented that he did not understand why he was being asked to submit his time sheet before the end of the working day. He also told the supervisor he did not appreciate the threat that his pay would be impacted. The supervisor simply responded,
On August 5, 2019, Jason Marshall, the president of Aces Group, reached out to Doe and told Doe he wanted to discuss the time sheet issue and a memorandum of concern that Aces Group had received from the government. Marshall tried to arrange a meeting that afternoon. Doe primarily teleworked,[3] and Doe informed Marshall that he was unable to meet that afternoon as he was working from home. Doe explained that he had client commitments and parenting responsibilities. Marshall offered to meet at Doe's home, but Doe rejected that offer as inappropriate. Marshall instructed Doe to work onsite for the rest of the week. Doe admitted that he did not work onsite on August 5 or August 6.
Also on August 5, Doe contacted a human resource representative for Insperity, and he complained that Aces Group had threatened to withhold his pay. He also, for the first time, asserted that Aces Group was aware of a disability that impacted his ability to submit time sheets on time. Doe also informed Marshall that he considered the change to his telework agreement to be retaliation for his complaint about the threat to withhold his pay. Marshall denied that it was retaliation, and he arranged to meet Doe after Doe's client meeting at the Pentagon on August 7.
After Doe's client meeting on August 7, Marshall approached Doe to conduct the meeting. Doe initially refused to meet; according to him, he refused because his complaint about the threat to withhold pay had not been resolved. After being informed that his laptop would be taken, Doe agreed to meet. He requested a human resources representative (from Insperity) be present. That request was granted, and the representative participated by phone.
At the meeting, Marshall asked Doe what he had been working on at home. Doe asked to speak privately with the human resources representative and that request was also granted. Doe expressed his concerns that his complaints about the threat to withhold pay had not been resolved. The human resources representative then spoke with the supervisors without Doe. When Doe returned, he was again asked what he had been doing. During the subsequent proceedings, Doe admitted he had been asked this question, but he explained that the circumstances made him believe it was retaliation for the time sheet issue. Doe did not respond to the question, and Marshall informed Doe that his services were no longer needed.
Doe filed a claim for unemployment benefits on August 14, 2019. A deputy for the VEC determined that Doe was terminated for misconduct and was therefore disqualified from receiving benefits. Doe argued that he was denied due process because he was not permitted to participate in a fact-finding interview prior to the decision. The Commission record indicates that an employee contacted Doe twice. The first time was on September 10, 2019, and the caller left Doe a voicemail indicating Doe should call back before 2:30 p.m. on September 12 to provide a statement. Doe called twice on September 12 and left a voicemail indicating he was calling to provide his statement. The Commission contacted Doe a second time on September 12, 2019, and it advised him to call back no later than September 16 to make the statement. The Commission also informed him that if he did not make the statement by 3:30 p.m. on that date, the decision would be made on the available record. Doe admits to receiving the first call, but he claims he did not receive the second call. Doe did not call back prior to the deadline, and the deputy issued its decision without his statement. Doe appealed the decision.
After an initial continuance, a hearing was scheduled with an appeals examiner for December 13, 2019. Doe asked the Commission to issue subpoenas to seventeen different people and to issue subpoenas duces tecum for relevant employment records. Doe's initial request listed the service address as "The Pentagon, Washington, D.C." The Commission denied his request, and it informed him that the address was outside the Commonwealth of Virginia. Doe argued that the Pentagon was in Virginia even though it had a different mailing address. He also offered to arrange a private process server to serve the subpoenas, which the Commission rejected because local sheriffs serve VEC subpoenas. Doe finally provided the Commission with the correct address and necessary information around 4:00 p.m. on December 11, 2019. The Commission denied the request for subpoenas the following day. The record indicates that because the requests came in so late, there was no time to issue and serve them prior to the December 13, 2019 hearing. Additionally, the reviewer indicated that many of the requests were denied as not relevant to Doe's claims or because reasons for the request were not provided.
Doe participated in the December 13, 2019 hearing. The employer did not. The appeals examiner went through all the exhibits with Doe. She also questioned Doe and took his testimony. At the end of the hearing, Doe asked to read a letter into the record. When he informed her that the letter was "like ten pages," she asked him to email it to her and agreed to keep the record open to receive it into evidence as Exhibit 12. She also asked if there were any other facts he would like to present or a closing statement he wanted to make. The exhibit did not make it into the record, and the appeals examiner ultimately affirmed the decision of the deputy commissioner. Doe appealed that decision.
Doe requested a hearing before the Commission. After the Commission granted Doe an initial continuance, the hearing was scheduled for April 28, 2020, at 1:00 p.m. Prior to the hearing, Doe asked the Commission to take additional evidence. The special examiner took the issue under advisement.
Due to COVID-19, the hearing was conducted via telephone. As with the first level appeal, Doe participated, but the employer did not. Following the hearing, Doe filed a written challenge to the interests of the...
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