Kennedy's Piggly Wiggly Stores, Inc. v. Cooper, 1174-91-3

• Decision Date: 16 June 1992
• Docket Number: No. 1174-91-3,1174-91-3
• Citation: 14 Va.App. 701,419 S.E.2d 278
• Parties: KENNEDY'S PIGGLY WIGGLY STORES, INC. v. Walter COOPER. Record
• Court: Virginia Court of Appeals

Page 278

419 S.E.2d 278

14 Va.App. 701

KENNEDY'S PIGGLY WIGGLY STORES, INC. v. Walter COOPER.

Record No. 1174-91-3.

Court of Appeals of Virginia.

June 16, 1992.

Mark M. Lawson, Bristol (Steven R. Minor, Bristol, Jeffrey A. Sturgill, Wise, White, Elliot & Bundy, Bristol, Sturgill, Mullins & Kennedy, Wise, on briefs), for appellant.

Hugh F. O'Donnell, Castlewood (Client Centered Legal Services of Southwest Virginia, Inc., on brief), for appellee.

Present: KOONTZ, C.J., and MOON and ELDER, JJ.

KOONTZ, Chief Judge.

The Virginia Employment Commission (commission) ruled, pursuant to the Unemployment Compensation Act (Act), Title 60.2, Code of Virginia, that Walter Cooper (Cooper) was disqualified from receiving unemployment benefits because he was discharged from his job with Kennedy's Piggly Wiggly Stores, Inc. (Piggly Wiggly) for misconduct. Cooper appealed the decision to the trial court, which reversed the commission's denial of benefits. In this appeal, we must decide whether Cooper was guilty of "misconduct connected with his work" as contemplated by Code § 60.2-618(2). Holding that Cooper was not guilty of misconduct, we affirm the decision of the trial court.

Cooper worked for Kennedy's Piggly Wiggly Store in Big Stone Gap, Virginia as a stockman for almost twenty years. In October 1987, Cooper was disabled from a back injury and a major episode of depression. During his convalescence, Cooper was treated by four physicians who each gave conflicting opinions regarding the appropriate date for Cooper to return to work.

On February 1, 1988, Cooper attempted to report to work upon a release given by one of his doctors. However, Cooper was told to come back the next day for a meeting with company officials to determine whether he was capable of returning to work. Cooper returned the next day for a meeting attended by the store manager, the employer's personnel director, and the employer's chief executive officer. The meeting lasted approximately two and one-half hours.

During this meeting, the chief executive officer repeatedly asked for Cooper's resignation. Toward the end of the meeting, the chief executive officer "got on the subject" of union organizing activities that had occurred among company employees. He stated that he did not think the employees would "go for" union representation and Cooper responded that if they did not it was because they were afraid of losing their jobs. The chief executive officer told Cooper that if he was to keep his job, he was expected to do what he was told. Cooper responded, "Well I don't know who you are or where you come from but you're full of shit." Cooper further stated that he did not believe anything told to him by company officials. The chief executive officer fired Cooper for making these remarks. The store manager, who was present for part of the meeting, had no knowledge of Cooper's involvement in union organizing.

The commission found that Cooper's "discharge came about as a direct result of the statement he made to the employer's chief executive officer." Finding that the statement made to the chief executive officer "was so obviously contemptuous and in defiance of his authority as to constitute insubordination," the commission concluded that Cooper was guilty of misconduct. The commission also considered factors in mitigation of Cooper's behavior, including the length of the meeting, the repeated requests for his resignation, and the comments regarding the success or failure of a union organizing drive at Piggly Wiggly with which Cooper was involved. The commission held that these circumstances did not excuse or justify Cooper's misconduct.

The trial court reversed the decision of the commission and held that Cooper was not disqualified from receiving unemployment benefits. The trial court found that Cooper's "expression does not show flagrant disrespect, nor deliberately defy proper authority" and held that the evidence does not support the conclusion that Cooper's remarks constitute misconduct or insubordination.

Where the findings of fact of the commission are supported by the evidence and there is no fraud, they are conclusive on appeal and our jurisdiction is limited to questions of law. Israel v. Virginia Employment Comm'n, 7 Va.App. 169, 172, 372 S.E.2d 207, 209 (1988). "Whether an employee's behavior constitutes misconduct ... is a mixed question of law and fact reviewable by this court on appeal." Id. (citing Blake v. Hercules, Inc., 4 Va.App. 270, 356 S.E.2d 453 (1987)). We are bound by the commission's findings of fact, which are supported by the evidence. The issue, then, is whether these findings of fact are sufficient, as a matter of law, to constitute misconduct.

Employees who are discharged from employment due to "misconduct connected with his work" are disqualified from receiving unemployment benefits. Id. In Branch v. Virginia Employment Commission, 219 Va. 609, 249 S.E.2d 180 (1978), the Virginia Supreme Court defined "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.

Id. at 611, 249 S.E.2d at 182. The employer bears the burden of proving misconduct. "Absent circumstances in mitigation of such conduct, the employee is 'disqualified for benefits', and the burden of proving mitigating circumstances rests upon the employee." Id. at 611-12, 249 S.E.2d at 182.

"The Branch definition of misconduct has two prongs." Israel, 7 Va.App. at 173, 372 S.E.2d at 209. The first prong defines misconduct as a deliberate violation of a company rule. The definition of misconduct under the second prong contemplates actions or omissions of such a nature or so recurrent as to manifest a willful disregard of the employer's interests and the duties and obligations the employee owes the employer. Here, there is no proof that Piggly Wiggly had a company rule forbidding the use of offensive or vulgar language at the workplace and, further, Piggly Wiggly has not alleged that Cooper's behavior was "recurrent." Accordingly, our consideration is limited to determining whether, under the second prong, Cooper's remark was of such a nature to manifest a willful disregard of Piggly Wiggly's business interests and the duties and obligations Cooper owed Piggly Wiggly.

This case raises an issue of first impression in Virginia. However, many of our sister states have considered whether the use of vulgar or offensive language at the workplace, when directed to a superior, bars a claim for unemployment compensation. See Annotation, Use of Vulgar or Profane Language As Bar To Claim For Unemployment Compensation, 92 A.L.R.3d 106, 117-23 (1979 & Supp.1991). Generally, these courts have recognized that an employee's use of vulgar or offensive language toward a superior on a isolated occasion may constitute willful misconduct. Unemployment Ins. Comm'n v. Dye, 731 S.W.2d 826 (Kent.Ct.App.1987); Acord v. Labor and Indus. Relations Comm'n, 607 S.W.2d 174 (Mo.Ct.App.1980); Strong v. Commonwealth, Unemployment Compensation Bd. of Review, 73 Pa.Cmwlth. 554, 459 A.2d 57 (1983). However, in most cases where benefits have been denied, there were other factors, in addition to the offensive language, supporting a denial of benefits.

Although there is some authority recognizing that a single utterance of profanity or vulgarity may constitute sufficient grounds for a denial of unemployment compensation to an individual discharged for using such language, most of the cases in which a claimant's vulgar or profane language has been held to be a basis for the denial of benefits have involved a combination of factors, of which the claimant's use of offensive language was only one.

Id. at 110 (footnote omitted).

A finding of willful misconduct necessarily depends upon the particular circumstances of the case. Here, we must consider the circumstances attending the alleged misconduct to determine whether the words spoken were of such a nature to evince a willful disregard of the employer's interests and the employee's duties and obligations. See Israel, 7 Va.App. at 175...