COURT OF APPEALS OF VIRGINIA

 

 

 Present:  Judges Elder, Bumgardner and Humphreys

 

 

 BERNARD DUNCAN

                         MEMORANDUM OPINION*

 v.      Record No. 0431-00-2    PER CURIAM

                                                                    SEPTEMBER 5, 2000

 DATA SERVICES AMERICA AND

  VIRGINIA EMPLOYMENT COMMISSION

 

 

         FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY

 Charles L. McCormick, III, Judge

 

                 (Bernard Duncan, pro se, on briefs).

 

                 (Mark L. Earley, Attorney General; Lisa J. 

 Rowley, Assistant Attorney General, on 

 brief), for appellee Virginia Employment 

 Commission.

 

                 No brief for appellee Data Services America.

 

 

         Bernard Duncan contends that the Circuit Court of Mecklenburg 

 County (circuit court) erred in affirming a decision of the 

 Virginia Employment Commission (Commission) that disqualified him 

 from receiving unemployment compensation benefits effective 

 January 3, 1999.  The Commission (1) found that Data Services 

 America (employer) discharged Duncan for misconduct connected with 

 work under Code  60.2-618(2)(a); and (2) denied Duncan's request 

 to present additional evidence and testimony pursuant to 16 VAC 

 5-80-30(B) of the Rules and General Rules Affecting Unemployment 

 Compensation.  Duncan further contends that the Commission's 

 decisions were procured by fraud and deceit; that he was denied 

 due process of law; and that the Commission's decisions were based 

 upon an incomplete record.   Upon reviewing the record and the 

 briefs of the parties, we conclude that this appeal is without 

 merit.  Accordingly, we summarily affirm the circuit court's 

 decision.  See Rule 5A:27.

 I.  Sufficiency of Evidence of Misconduct

         "[I]n any judicial proceedings '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.'"  Israel v. Virginia 

 Employment Comm'n, 7 Va. App. 169, 172, 372 S.E.2d 207, 209 (1988) 

 (citation omitted).  "In accord with our usual standard of review, 

 we 'consider the evidence in the light most favorable to the 

 finding by the Commission.'"  Wells Fargo Alarm Servs., Inc. v. 

 Virginia Employment Comm'n, 24 Va. App. 377, 383, 482 S.E.2d 841, 

 844 (1997) (citation omitted).

         So viewed, the evidence established that Duncan began working 

 for employer as a data entry trainee on June 23, 1998.  Employer 

 is a data entry service bureau, which processes a large quantity 

 of Medicaid claims.  A data entry trainee must meet certain speed 

 and accuracy standards over a specific period of time before being 

 promoted to a full-fledged operator position.  Once employees 

 reach operator status they receive incentive pay based upon their 

 keystrokes.  Normally, employer allowed a trainee six weeks to 

 attempt to attain operator status.  However, employer allowed 

 Duncan to remain in trainee status longer than usual, because it 

 hoped he would eventually be able to meet the speed and accuracy 

 requirements.  Ultimately, employer terminated Duncan from his 

 employment on January 7, 1999.

         In a December 8, 1998 letter to Jean Hofheimer, employer's 

 president, Duncan expressed his dissatisfaction with his pay, his 

 belief that he was being treated unfairly and not being permitted 

 to use the computer equipment with which he felt most comfortable, 

 his belief that when he discussed personal business with his 

 supervisors they divulged it to others, not receiving telephone 

 calls when others had been permitted to do so, and his belief that 

 he was being harassed and discriminated against on the basis of 

 his race.

         As a result of the December 8, 1998 letter, Hofheimer and her 

 son, employer's vice-president and regional manager, met with 

 Duncan on December 14, 1998.  They explained issues of pay and 

 tried to resolve Duncan's concerns regarding discrimination and 

 harassment.  Duncan did not seem to agree with what he was told, 

 but he did not object either. 

         Duncan did not mention these matters again until January 4, 

 1999, when he sent employer another letter.  In that letter, 

 Duncan raised some of the same issues he had raised in the 

 December 8, 1998 letter, concerning his pay, the type of computer 

 he was working on, and promotion to operator status.  Duncan's 

 January 4, 1999 letter also contained the following language:

 I am going to tell you what my intentions 

 are.  First of all, I am going to my friend 

 in Richmond, who works for the IRS.  Then, I 

 am going to the EEOC and the Labor Board, 

 and the Better Business Bureau.  And, if you 

 don't restitute me, I will see you in civil 

 court.  I am not playing one bit.

 You are using people in this "shop".  How 

 many have you used is the question?  This is 

 tantamount to fraud, tax evasion, grand 

 larceny for the money you have pilfered from 

 workers like me and whatever other 

 violations.  I want mine with interest.  You 

 don't care about me because, if you did, I 

 wouldn't be going through this now.  I am 

 speaking for Bernard Duncan only, but if you 

 don't do the right thing, it will include 

 any and everybody whoever worked there.  I 

 want my money and I mean it.

         Hofheimer perceived Duncan's January 4, 1999 letter as 

 extremely threatening.  As a result, on January 7, 1999, Hofheimer 

 sent Duncan a letter terminating his employment.  Hofheimer 

 testified that the sole reason for Duncan's termination was the 

 tone of his January 4, 1999 letter.  

         In Hofheimer's January 7, 1999 letter, she informed Duncan as 

 follows:

 I can only conclude that you and DSA will 

 never arrive at a solution to your perceived 

 problems.  You have been provided training 

 and opportunity just as all other employees 

 of the company.  I realize that you do not 

 see it that way, but believe me, the company 

 has no desire to keep keyers from making 

 operator status.

 Hofheimer also wrote: 

 I do not understand how you arrived at some 

 of your conclusions and accusations, but as 

 noted above, after trying to reason with 

 you, I feel that further attempts to resolve 

 your issues would be futile.  Given the tone 

 of your letter, your further employment 

 would be disruptive to DSA's operation. 

         Hofheimer testified that she believed, based upon Duncan's 

 January 4, 1999 letter, that he was accusing employer of "running 

 a racket," of trying to prevent Duncan from obtaining operator 

 status, of discrimination, and of several felony offenses, 

 including grand larceny and tax evasion.  She stated that employer 

 had tried to resolve Duncan's concerns in the December 14, 1998 

 meeting, but to no avail.  She was also concerned, based upon the 

 contents of the letter, that Duncan would involve other employees 

 with his problems, causing disruption of employer's business. 

         Employer's "General Rules and Policies," which Duncan was 

 aware of, prohibited employees from "[c]reating an oral or written 

 statement defaming, ridiculing, degrading, or otherwise 

 discrediting the company . . . ."  The policy also prohibited 

 employees from "[t]hreatening, intimidating, coercing, harassing 

 and insulting another employee at any time" or from committing 

 "[b]ehavior that is disruptive to the work of others."  The policy 

 made it clear to the employee that engaging in such conduct could 

 be grounds for termination from employment.

 [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.  

 Branch v. Virginia Employment Comm'n, 219 Va. 609, 611, 249 S.E.2d 

 180, 182 (1978).  "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.  

         When viewed in a light most favorable to the Commission and 

 employer, the record establishes that the threatening and 

 accusatory tone of Duncan's January 4, 1999 letter, which 

 contained very serious and at that time, unsubstantiated and 

 defamatory allegations against employer, demonstrated a deliberate 

 and willful disregard of Duncan's duties and obligations to 

 employer which were designed to protect its legitimate business 

 interests.  Accordingly, Duncan's actions constituted misconduct 

 connected with work.  

         "Once the employer has borne the burden of showing misconduct 

 connected with the work, . . . the burden shifts to the employee 

 to prove circumstances in mitigation of his or her conduct." 

 Virginia Employment 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).  Whether a claimant's evidence sufficiently 

 mitigates his behavior so as to avoid disqualification for 

 benefits is a question of fact for the Commission.  See Britt v. 

 Virginia Employment Comm'n, 14 Va. App. 982, 986, 420 S.E.2d 522, 

 525 (1992).

         The Commission was not persuaded by Duncan's evidence of 

 mitigating circumstances.  The record supports the Commission's 

 finding that employer discharged Duncan for misconduct connected 

 with work and that Duncan failed to present sufficient evidence in 

 mitigation.  Accordingly, the Commission did not err in 

 disqualifying him from receiving unemployment benefits.

 II.  Additional Evidence

         Duncan made a motion before the Commission during the appeals 

 process requesting that it consider additional documentary 

 evidence and witness testimony.  Specifically, Duncan requested 

 that the Commission consider employer's written policy pertaining 

 to "operator status" and "excused and unexcused absences," 

 Duncan's complete file, including his employment application and 

 W-4 forms, computerized results from pre-employment typing tests 

 taken by Duncan, and documentation as to how employer calculated 

 the rate of pay for employees who worked on North Carolina claims 

 and for employees who worked on Virginia claims.  In addition, 

 Duncan requested that several co-workers be called to testify 

 regarding hiring procedures, production, and pay issues.

         The Commission denied Duncan's request, finding that he had 

 not satisfied the criteria contained in 16 VAC 5-80-30(B) for the 

 receipt of additional evidence.  Specifically, the Commission 

 found that the additional evidence was not material to the 

 substantive issues in the case, or if received, would not have 

 been likely to produce a different result, and the record prepared 

 by the Appeals Examiner was sufficient to enable the Commission to 

 make proper, accurate, and complete findings of fact and 

 conclusions of law.

         The Commission's findings and conclusions are fully supported 

 by the record.  Regardless of whether the commission ruled on the 

 admissibility of the evidence in question during the initial 

 stages of the proceedings or during the appeals process, we find 

 that the Commission did not abuse its discretion in refusing to 

 consider the evidence.  The additional evidence was not material, 

 relevant, or necessary to the Commission's decision on the 

 substantive issues in this case.  Moreover, even if received, the 

 additional evidence would not have likely produced a different 

 result.  Accordingly, the commission did not err in refusing to 

 consider it.  

 III.  Fraud/Due Process/Incomplete Record

         We find no basis in fact or law for Duncan's unsubstantiated 

 allegations that the decisions of the circuit court or the 

 Commission's Deputy, Appeals Examiner, or Special Appeals Examiner 

 were somehow procured by fraud or deceit, or that the circuit 

 court's or the Commission's employees and judges were somehow 

 biased against Duncan or predisposed to rule in favor of employer.  

 In addition, we find no merit in his argument that "the file [or 

 record] is 'incomplete'" or that he was denied due process of the 

 law.  On the contrary, Duncan and employer were afforded a 

 reasonable opportunity for a full and fair evidentiary hearing on 

 his claim for unemployment benefits pursuant to the procedures 

 established by statutes and regulations.  

         For these reasons, the judgment of the circuit court is 

 affirmed. 

 Affirmed.

 * Pursuant to Code  17.1-413, recodifying Code 

  17-116.010, this opinion is not designated for publication. 

   Duncan's opening brief contains a great deal of argument 

 and numerous issues presented for consideration, many of which 

 concern matters that are not relevant or proper for 

 consideration by this Court on appeal.  Accordingly, we have 

 narrowed the issues which we will consider on appeal to those 

 considered by the Commission and the circuit court.  In 

 addition, in rendering our decision we considered only that 

 evidence which is in the record and was properly before the 

 Commission when it rendered its decision.

 

   We deny the Commission's motion to dismiss Duncan's 

 appeal. 

  

 

  

  

 

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