Johnson v. Virginia Employment Com'n

• Court: Virginia Court of Appeals
• Writing for the Court: COLEMAN; BENTON
• Citation: Johnson v. Virginia Employment Com'n, 382 S.E.2d 476, 8 Va.App. 441 (Va. App. 1989)
• Decision Date: 25 July 1989
• Docket Number: No. 1602-87-3,1602-87-3
• Parties: Mary P. JOHNSON v. VIRGINIA EMPLOYMENT COMMISSION, et al. Record

Page 476

382 S.E.2d 476

8 Va.App. 441

Mary P. JOHNSON v. VIRGINIA EMPLOYMENT COMMISSION, et al.

Record No. 1602-87-3.

Court of Appeals of Virginia.

July 25, 1989.

Kathleen A. Dooley, Christiansburg, for appellant.

Patrice T. Johnson, Asst. Atty. Gen., Mary Sue Terry, Atty. Gen., Richmond, Deborah L. Wood, Gary C. Hancock, Gilmer, Sadler, Ingram, Sutherland & Hutton, Pulaski, for appellees.

Panel: KOONTZ, BENTON and COLEMAN, JJ.

COLEMAN, Judge.

Mary P. Johnson appeals the circuit court's affirmance of the decision by the Virginia Employment Commission (VEC) which disqualified her for unemployment benefits based upon Code § 60.2-618(3)(a). The VEC found that Johnson had rejected, without good cause, suitable work offered by her former employer, Magnox, Inc. Johnson contends that the reemployment offered was not suitable because (1) it failed to utilize her training and experience, (2) her period of unemployment had been short, which limited her opportunity to find comparable work, and (3) she was not physically capable of performing many of the tasks required of the offered job. Finally, she contends that even if the offered work was suitable, she had good cause to refuse the offer.

We find sufficient credible evidence in the record to support the VEC's finding that the employment which was offered was suitable. We find, however, that Johnson did have good cause to refuse the offer of employment. Accordingly, we reverse the circuit court's decision and remand the claim with directions that the trial court vacate its judgment and enter judgment in accordance with the following opinion.

Johnson had been employed with Magnox, Inc., at Pulaski from May 8, 1978, through January 23, 1987. She was discharged from Magnox on January 23, 1987, for having left her job without permission. At the time of her discharge she was classified as a small particle operator, a semi-skilled labor position, earning $8.62 per hour, plus a shift differential. Johnson's reason for leaving was to pick up her children at her babysitter's before a sizeable snowstorm hit. Magnox says this was but one of numerous acts of misconduct which led to Johnson's discharge.

Johnson filed for unemployment benefits in February 1987. The deputy commissioner found that Johnson was disqualified for benefits on the ground that she was discharged due to her own work-related misconduct. Johnson appealed that holding and by decision dated April 10, 1987, the appeals examiner reversed, holding that mitigating circumstances obviated Johnson's misconduct so as not to disqualify her. On May 20, 1987, the full commission affirmed the appeals examiner. The finding that Johnson was not disqualified for work-related misconduct was not appealed.

While Johnson's appeal of the deputy commissioner's misconduct disqualification was pending, Magnox by letter dated February 27, 1987, offered Johnson reemployment at a different job subject to the following conditions: (1) she would be on one year probation; (2) she would be assigned to the day crew; (3) she could not bid for other jobs or job classifications during the probationary period, and (4) she accept her discharge as a suspension without pay. The offer of reemployment by Magnox was as a laborer which would require that she perform a variety of jobs throughout the plant on the dayshift. At the time of the offer her previous position with Magnox was not filled. Her pay would be eight dollars per hour. In a meeting with management on March 11, 1986, Johnson refused the offer. In addition to the misconduct disqualification issue which was on appeal before the VEC when Magnox offered reemployment, Johnson had filed a grievance against Magnox under the company's collective bargaining agreement, seeking reinstatement to her former job. However, Johnson had exhausted the third and final stage of grievance hearings without being reinstated when Magnox offered reemployment.

The VEC's deputy commissioner found that the laborer position was not suitable employment for Johnson in light of her qualifications and experience and the short period of unemployment during which Johnson could locate comparable work. Magnox appealed. At the de novo hearing Johnson testified that she refused the offer because she questioned Magnox's motives and sincerity in offering the job. She testified her old job was still available but Magnox had offered only the laborer's position in an attempt to deprive her of unemployment compensation. She also expressed concern whether she could do the heavy lifting required of a laborer. A Magnox representative testified that the offer was made in good faith, that the dayshift laborer's job would give Magnox better supervision of Johnson, and that it might alleviate Johnson's problems with child care. He testified that the position did not require unusually heavy lifting and that Johnson had performed the job before with Magnox. An employment service representative testified that eight dollars per hour pay for laborers was competitive with the rate paid by other companies in the area. Based on this evidence the appeals examiner ruled that the laborer position was suitable employment and therefore Johnson's refusal was unjustified. Thus, she was disqualified from receiving unemployment benefits. The full commission agreed and on appeal the circuit court affirmed the decision.

Code § 60.2-618 enumerates circumstances which disqualify an individual for unemployment benefits. The commission relied upon Code § 60.2-618(3)(a) which provides that an individual will be disqualified "[i]f it is determined by the commission that such individual has failed, without good cause, either to apply for available, suitable work when so directed by the employment office or the commission or to accept suitable work offered him." The commission specifically found that Johnson had refused, without "good cause," Magnox's offer for "suitable work."

On review the commission's findings "as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the [circuit] court shall be confined to questions of law." Code § 60.2-625(A); see also Virginia Employment Comm'n v. Penninsula Emergency Physicians, Inc., 4 Va.App. 621, 626, 359 S.E.2d 552, 554 (1987). However, the issues of "suitability of work" and "good cause" are mixed questions of law and fact reviewable by this court on appeal. See Israel v. Virginia Employment Comm'n, 7 Va.App. 169, 172, 372 S.E.2d 207, 209 (1988). The disqualification provision of Code § 60.2-618(3)(a) is designed to penalize an employee who causes his or her own unemployment. Virginia Compensation Comm'n v. Dan River Mills, Inc., 197 Va. 816, 819, 91 S.E.2d 642, 644 (1956). The burden of proving a disqualification under Code § 60.2-618(3)(a) rests with the employer to show by a preponderance of the evidence that the job was suitable. See Virginia Employment Comm'n v. Gantt, 7 Va.App. 631, ---, 376 S.E.2d 808, 811 (1989) (rehearing granted on other grounds). If the employer proves that the offered work is suitable, the claimant is disqualified unless he or she proves by a preponderance of the evidence that good cause existed to refuse the otherwise suitable work. Id. at ---, 376 S.E.2d at 811.

"Suitability" of employment and "good cause" for refusal involve separate determinations but they are not mutually exclusive. The same factors may, but will not necessarily, be considered in each determination. Generally "suitability" entails an evaluation limited to the nature and characteristics of the job in relation to the skills, training, and experience of the particular employee and the length of unemployment. The determination of "good cause" to refuse employment, however, will involve a much broader inquiry than merely considering whether the intrinsic aspects of the job are acceptable to the prospective employee. "Good cause" to refuse a job offer may arise from factors totally independent of those criteria used to determine whether a job is suitable to a particular employee; however, some or all of those factors intrinsic to the job may be considered in combination with extrinsic circumstances to determine whether good cause exists for the employee to refuse the employment. Thus, in reviewing the commission's decision, we address separately the distinct issues of suitability of work and good cause.

Judicial review of an administrative ruling requires that courts give deference to the expertise and knowledge of the agency in the area which it supervises and regulates. See Johnston-Willis v. Kenley, 6 Va.App. 231, 243-44, 369 S.E.2d 1, 7-8 (1988). The determination of "when work is suitable and when it is unsuitable, under the facts and circumstances of each particular case, has been delegated [by statute] to the Commission." Dan River Mills, Inc., 197 Va. at 820, 91 S.E.2d at 645. In making that determination Code § 60.2-618(3)(b) directs the commission to "consider the degree of risks involved to [the employee's] health, safety and morals, his physical fitness and prior training, his experience, his length of unemployment and the accessibility of the available work from his residence." See Dan River Mills, Inc., 197 Va. at 819, 91 S.E.2d at 645. Thus, the determination of "suitability" entails both a subjective and objective examination whether an employee with certain qualifications would reasonably be expected to accept an offer of employment considering, among other factors, the wage, the benefits, the duties, and the conditions intrinsic to a particular job in light of the length of unemployment and reasons therefor--usually a reasonably comparable wage in a job which utilizes an employee's experience and skills will be the major factors to measure suitability of a job offer; however, depending upon labor market conditions, length of unemployment, and other significant factors, a discharged employee may not reasonably expect...