McNamara v. Virginia Employment Com'n

• Decision Date: 18 August 2009
• Docket Number: No. 2317-08-4.,04 August 2317
• Citation: 681 S.E.2d 67,54 Va. App. 616
• Parties: Diane C.H. McNAMARA v. VIRGINIA EMPLOYMENT COMMISSION and Jeffrey W. Joerger.
• Court: Virginia Court of Appeals

681 S.E.2d 67

54 Va. App. 616

Diane C.H. McNAMARA v. VIRGINIA EMPLOYMENT COMMISSION and Jeffrey W. Joerger.

Record No. 2317-08-4.

Court of Appeals of Virginia, Alexandria.

August 18, 2009.

Alan Shachter, Manassas (Rachel A. Shachter, Washington, DC, on briefs), for appellant.

Thomas W. Nesbitt, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee Virginia Employment Commission.

No brief or argument for appellee Jeffrey W. Joerger.

Present: ELDER, BEALES and POWELL, JJ.

LARRY G. ELDER, Judge.

Diane C.H. McNamara (employer) appeals from a decision of the Prince William County Circuit Court affirming the determination of the Virginia Employment Commission (the commission) that Jeffrey W. Joerger (claimant) was entitled to unemployment benefits. On appeal, McNamara contends the circuit court erroneously concluded the commission's factual findings were supported by the evidence. We hold the circuit court did not err in concluding credible evidence in the record supports the commission's finding. Thus, we affirm.

I. BACKGROUND

Employer, a workers' compensation attorney operating her own law firm as a sole proprietor, hired claimant as an assistant paralegal on October 24, 2006. She terminated claimant's employment on February 1, 2007.

Claimant filed a claim for unemployment benefits with the commission. Employer disputed the claim, contending she discharged claimant for misconduct connected with his work. Following a telephonic fact-finding conference, a commission deputy determined claimant's deficiencies in job performance did not rise to the level of misconduct and held claimant was entitled to unemployment benefits.

Employer appealed the deputy's determination to an appeals examiner, who conducted a hearing at which employer and claimant testified. Employer indicated claimant portrayed himself as an experienced office worker and paralegal and that, although she "saw that he was ... capable of performing the job" for short periods of time, he was not consistent, completed his assigned tasks in a timely fashion only when she "stay[ed] on top of him," and never completed some of the tasks on his original "to-do" list. Claimant said he performed his job to the best of his ability and that he was not aware until six days before he was terminated that employer was dissatisfied with his work product or level of productivity.

The appeals examiner issued a written decision in which she recognized that employer bore the burden of proving misconduct and concluded she had done so. The appeals examiner found that claimant failed to complete tasks in the manner he had been trained to do, despite appropriate guidance and warnings. The appeals examiner concluded this evidence, coupled with claimant's admissions that he did not record and log certain costs as he had been trained to do, "clearly demonstrates a willful disregard for the employer's business interests, thus amounting to misconduct." She concluded "claimant could do much of the work" and that he "simply chose not to." Based on these findings, the appeals examiner held claimant was disqualified from receiving unemployment benefits.

Claimant appealed to the commission, which appointed a special examiner¹ to hear oral argument and receive written submissions from the parties.

The special examiner, on behalf of the commission, ruled as follows:

The Commission rejects the testimony of the employer to the effect that she informed the claimant before he had worked as much as a month that she wanted to terminate him and that he had begged so hard for his job that she agreed to place him on three month's [sic] probation which he had subsequently failed so as to bring about his termination. Not only did the claimant specifically deny ever being told this, but the fact that he received a Christmas bonus with a note indicating that it was for a job well done runs counter to the employer's contentions in this regard.

This employer has not made out a prima facie case that the claimant deliberately or willfully violated any rules or standards of behavior expected of him as an employee. Instead, the most that has been proven is that he was guilty of poor performance or errors in judgment which would not be sufficient to constitute misconduct in connection with work. While the commission takes no issue with the employer's decision to terminate the claimant due to his inability to pick up procedures on his own and do the necessary multi-tasking required in a solo practice law office, he should not be disqualified for benefits as a result of his separation.

Employer filed a petition for review in the circuit court, contending the commission should have deferred to the appeals examiner's credibility determinations and held claimant was discharged for behavior amounting to willful misconduct. The circuit court held that although "[m]ultiple complaints by the employer about Claimant's performance appear to be justified," the evidence supported the commission's finding that employer "failed to present sufficient evidence ... to make a prima facie showing that she discharged [claimant] for misconduct connected with his work."

Employer noted this appeal.

II. ANALYSIS

Employer's challenge to the award of benefits turns largely upon the commission's assessment of the credibility of the evidence. She contends the commission arbitrarily disregarded the credibility determinations of the appeals examiner, who heard the witnesses testify, and that the commission was not authorized to do so. She also argues one of the commission's specific factual findings is not supported by the evidence and that the circuit court's affirmance of the commission's decision failed to recognize this fact. In part as a result of these errors, she avers the commission and circuit court erred in concluding she did not meet her burden of presenting a prima facie case of misconduct. Finally, she contends claimant failed to rebut her evidence of misconduct and that the commission should have held claimant was disqualified from receiving unemployment benefits.

A. FACTUAL FINDINGS

In the course of an appeal of a commission decision to the circuit court or this Court, "the findings of the Commission as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive." Code § 60.2-625(A). "[T]he commission is charged with the responsibility of resolving [both] questions ... of controverted facts" and "questions of credibility." Va. Empl. 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) (adopting panel decision as written). If the commission's findings are supported by the evidence, they are binding on appeal. Kennedy's Piggly Wiggly Stores, Inc. v. Cooper, 14 Va.App. 701, 704, 419 S.E.2d 278, 280 (1992). "Whether an employee's behavior constituted misconduct ... is a mixed question of law and fact ...." Israel v. Va. Empl. Comm'n, 7 Va.App. 169, 172, 372 S.E.2d 207, 209 (1988).

At issue in this case is the degree of deference the commission owes to its appeals examiner's determinations of witness credibility. We have not previously addressed this question in a published decision. In the workers' compensation context, established principles provide that the Workers' Compensation Commission is not bound by a deputy commissioner's prior findings on questions of witness credibility. Bullion Hollow Enters., Inc. v. Lane, 14 Va.App. 725, 729-30, 418 S.E.2d 904, 907 (1992) (citing Goodyear Tire & Rubber Co. v. Pierce, 5 Va.App. 374, 382, 363 S.E.2d 433, 437 (1987)). In first enunciating this standard, we noted the Workers' Compensation Commission has statutory authority to hear a case de novo and that, under such circumstances, it is not bound by the credibility determinations or other factual findings of the deputy. Pierce, 5 Va.App. at 382-83, 363 S.E.2d at 437-38 (quoting former Code § 65.1-97, now Code § 65.2-705, which provides that upon an application for review of the decision of a deputy, the Workers' Compensation Commission "`shall review the evidence or, if deemed advisable, ... hear the parties at issue, their representatives and witnesses'"). From this statutory authority, we reasoned that when the Workers' Compensation Commission opts to conduct a review on the record without hearing evidence, it must explain any credibility determinations it makes that are contrary to the deputy's only if the deputy "ma[de] an explicit finding of credibility based upon a witness' demeanor or appearance at the hearing." Lane, 14 Va.App. at 728, 418 S.E.2d at 907. We expressly held that, "[a]bsent a specific, recorded observation [by the deputy] regarding the behavior, demeanor or appearance of [a particular witness], the [Workers' Compensation Commission] ha[s] no duty to explain its reasons for finding [one witness] more credible than [another]." Id. at 729, 418 S.E.2d at 907.

Just as in the workers' compensation context, the statute governing the Employment Commission's review of an appeals examiner's decision provides that the commission may "receive [additional] evidence itself," Code § 60.2-622(A), thereby permitting de novo review. Accordingly, we now hold that, just as in matters before the Workers' Compensation Commission, see Lane, 14 Va.App. at 729-30, 418 S.E.2d at 907, the Employment Commission is not bound by the appeals examiner's prior findings on questions of witness credibility. In this context, as in that one, we hold the commission must explain any credibility determinations it makes that are contrary to the appeals examiner's only if the appeals examiner "ma[de] an explicit finding of credibility based upon a witness' demeanor or appearance at the hearing." See id. at 728, 418 S.E.2d at 907. "Absent a specific, recorded observation [by the appeals examiner] regarding the behavior, demeanor or appearance of [a particular witness], the commission ha[s] no duty to...