COURT OF APPEALS OF VIRGINIA

 

 

 Present:  Judges Elder, Bumgardner and Humphreys

 

 

 GEORGE O. GARLAND

                                                                 MEMORANDUM OPINION*

 v.      Record No. 0433-00-3                        PER CURIAM

                                                                   AUGUST 8, 2000

 VIRGINIA EMPLOYMENT COMMISSION

 AND

 MRS. GILES COUNTRY KITCHEN, INC.

 

 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG

 Mosby G. Perrow, III, Judge

 

 (Renae Reed Patrick; Virginia Legal Aid 

 Society, Inc., on briefs), for appellant.

 

 (Mark L. Earley, Attorney General; Robert L. 

 Walker, Assistant Attorney General; Lisa J. 

 Rowley, Assistant Attorney General, on 

 brief), for appellee Virginia Employment 

 Commission.

 

 (Frank K. Friedman; John Cotton Richmond; 

 Woods, Rogers & Hazlegrove, PLC, on brief), 

 for appellee Mrs. Giles Country Kitchen, 

 Inc.

 

 

         George O. Garland contends the trial court erred in 

 affirming a decision of the Virginia Employment Commission 

 (Commission) that disqualified him from receiving unemployment 

 benefits on the ground that he was discharged from his 

 employment for misconduct connected with work under Code 

  60.2-618(2).  Garland asserts that the trial court 1) abused 

 its discretion by not allowing him to amend his petition for 

 judicial review; 2) erred by failing to consider alleged fraud; 

 3) erred in refusing to remand the case to the Commission for 

 further proceedings; 4) erred by upholding the Commission's 

 decision; and 5) erred in not finding a prima facie case of 

 fraud.  Pursuant to Rule 5A:21(b), the Commission raises the 

 additional question of whether the trial court erred by 

 concluding that the court had the discretionary authority to 

 grant Garland's request to amend the petition for judicial 

 review.  Upon reviewing the record and briefs of the parties, we 

 conclude this appeal is without merit.  Accordingly, we 

 summarily affirm the circuit court's decision.  See Rule 5A:27.

 Background

         Garland worked for Mrs. Giles Country Kitchen (employer) 

 from March 25, 1991 through July 13, 1995.  The employer had a 

 progressive discipline system of which Garland was aware.  Under 

 this system, an employee would receive written warnings in the 

 event of attendance problems, followed by a three-day suspension 

 and, in the event of further problems, termination of his 

 employment.  

         In the several months preceding Garland's discharge, the 

 employer had issued him a number of written warnings concerning 

 attendance problems, primarily tardiness.  After Garland was 

 tardy on July 6, 1995, the employer suspended him for three days 

 beginning on July 10.  

         Garland normally worked making ham and cheese spread for 

 the employer, but when Garland returned from his suspension on 

 Thursday July 13, supervisor Dale Braxton assigned him to a 

 different job.  Although Garland's normal assignment was not 

 listed on the Friday production schedule, Braxton told Garland 

 on Thursday that Garland would continue working on the new job 

 on Friday.  Braxton also testified that it was not customary for 

 employees to check the production schedule to see if they would 

 be working.  Garland did not show up for work on July 14, nor 

 did he call the employer to report his absence.

         Plant Supervisor Barry Hunt testified that Charles Davis 

 and Donny Ray Anderson reported overhearing Braxton tell Garland 

 that he would be working on Friday.  In a letter to the 

 employer's human resources manager, Hunt indicated that Davis 

 also reported hearing Garland complain about working Thursday 

 and Friday on the new assignment.

         The employer discharged Garland on July 17 as a result of 

 his July 14 absence.

         Garland denied being told by Braxton that he had to work 

 Friday and claimed that he thought he was off that day.  Garland 

 admitted that he had been working on Fridays that summer, 

 including the previous Friday.  In his August 1, 1995 statement 

 to the Commission claims deputy, Garland reported that 

 "[n]ormally we don't work on Fridays."  

         Garland denied complaining to any co-workers about having 

 to perform the new job and testified that Davis was intoxicated 

 on July 13.  In his August 1 statement to the claims deputy, 

 Garland stated:  "They claim they had a witness that heard the 

 supr. tell me to work.  This so-called witness was drunk."

         Following a September 20, 1995 hearing, the appeals 

 examiner qualified Garland to receive unemployment benefits.  

 The employer appealed and Garland appeared before the Commission 

 special examiner on January 23, 1996.  At that hearing, Garland 

 referred to "newly discovered evidence," which Garland 

 represented tended to prove fraud on the part of the employer.  

         At the request of the special examiner, on January 25, 

 Garland submitted to the Commission an affidavit from Davis.  In 

 the affidavit, Davis stated that he worked with Garland on July 

 13, 1995, that he did not overhear Braxton tell Garland that 

 Garland was to work on Friday, and that he never told any Mrs. 

 Giles employee that he had overheard such a conversation.

         The special examiner issued his decision on February 29, 

 1996.  The decision made no reference to the Davis affidavit, 

 but the special examiner did find that two of Garland's 

 co-workers "reported that the claimant complained to them about 

 having to work on Friday July 14, 1995.   There was no specific 

 finding in the Commission decision that any employees overheard 

 Braxton tell Garland to report to work on Friday, or that any 

 employees reported overhearing this to the employer.

         In reversing the appeals examiner and disqualifying Garland 

 from receiving unemployment benefits, the special examiner held: 

 [T]he claimant's supervisor told him to come 

 to work specifically because he was in 

 training for a new duty. . . . [T]he 

 claimant knew that he had been assigned a 

 new duty.  Further, the human resource 

 officer's investigation, although based on 

 the unsworn testimony of two of the 

 claimant's co-workers that the claimant 

 complained about having to work on Friday, 

 leaves little doubt that the claimant knew 

 he had to work that day.

 

 The special examiner specifically rejected Garland's argument 

 that he did not know he had to work because he was not on the 

 production schedule, noting that Garland had been working 

 Fridays recently and "there was no evidence in the record to 

 show that he was not expected to work."  

         Garland filed a timely petition for judicial review on 

 March 20, 1996.  In that petition, Garland contended the 

 Commission's decision was not supported by the evidence, that 

 the Commission had ignored the appeals examiner's credibility 

 findings, and that the Commission had improperly placed the 

 burden of proof on Garland.  He did not allege that any fraud 

 had occurred and he did not request that the matter be remanded 

 back to the Commission.

         On April 11, 2000, Garland filed an amended petition for 

 review wherein he alleged that 1) he was denied a fair hearing 

 before the special examiner because the special examiner had 

 made no mention of Davis' affidavit; 2) the special examiner had 

 improperly relied on the employer's hearsay evidence; and 3) the 

 employer had committed fraud upon the Commission by submitting 

 the employer's "incorrect" evidence regarding Davis' statements, 

 which was refuted by Davis' affidavit.

         At a January 11, 2000 hearing, the trial court rejected the 

 Commission's argument that the court could not permit Garland to 

 amend the petition.  But the court nevertheless denied Garland's 

 motion to amend the petition.  The court also found sufficient 

 "facts in the record to support the final decision of the 

 [Commission]."

 Motion to File an Amended Petition

         "Code  60.2-625 sets out in elaborate detail the 

 procedures intended to govern judicial review of compensation 

 determinations."  Shuler v. Virginia Employment Comm'n, 14 Va. 

 App. 1013, 1016, 420 S.E.2d 257, 259 (1992) (holding that, 

 because the Virginia Employment Compensation Act provided, in 

 great detail, the procedures governing appeals of Commission 

 decisions, such appeals were not governed by the Virginia 

 Administrative Process Act).  And generally, rules of civil 

 procedure do not apply to administrative proceedings unless the 

 administrative rules so provide.  See Broomfield v. Jackson, 18 

 Va. App. 854, 858, 447 S.E.2d 880, 882 (1994); cf. Hoyle v. 

 Virginia Employment Comm'n, 24 Va. App. 533, 537-38, 484 S.E.2d 

 132, 134 (1997) (holding that statutorily granted appellate 

 jurisdiction necessarily implies the authority to remand a case 

 to a lower tribunal for further proceedings).

         Code  60.2-625 does not provide for amending a petition 

 after the appeal period has expired and it does not expressly 

 incorporate Rule 1:8, which is a rule of general civil 

 procedure.   Nor is granting permission to amend a pleading 

 outside the statutory appeal period an implicit right of an 

 appellate tribunal.  Accordingly, since the trial court did not 

 have the authority to grant Garland permission to amend his 

 petition for judicial review outside the thirty-day appeal 

 period granted by Code  60.2-625, Garland's assertion that the 

 trial court abused its discretion is moot.  And given that the 

 trial court denied Garland's motion to amend, the trial court's 

 error in concluding that it had the authority to permit the 

 amendment was harmless.  

 After-Discovered Evidence

         Garland contends the special examiner erred by not 

 considering the Davis affidavit, which Garland asserts was 

 after-discovered evidence.

         "No ruling of the trial court . . . will be considered as a 

 basis for reversal unless the objection was stated together with 

 the grounds therefor at the time of the ruling, except for good 

 cause shown or to enable the Court of Appeals to attain the ends 

 of justice."  Rule 5A:18 (emphasis added).

         At the January 23 hearing, the special examiner did not 

 rule on whether he would accept the Davis affidavit, and the 

 special examiner's decision makes no reference to that evidence. 

 When a party seeks to introduce evidence, it is his 

 responsibility to obtain a ruling from the tribunal on its 

 admissibility.  If the party fails to do this, then "there is no 

 ruling for us to review on appeal."  Ohree v. Commonwealth, 26 

 Va. App. 299, 308, 494 S.E.2d 484, 489 (1998); see Taylor v. 

 Commonwealth, 208 Va. 316, 324, 157 S.E.2d 185, 191 (1967) 

 (finding that a defendant's objection was not preserved for 

 appeal where he did not obtain a ruling from the court).  

 Accordingly, this issue has not been preserved for appeal.

         Even if we assume that the special examiner rejected the 

 Davis affidavit, Garland still cannot prevail.  A party's 

 request to present additional evidence will be granted only if 

 the new evidence "could not have been presented at the prior 

 hearing through the exercise of due diligence, and is likely to 

 produce a different result at a new hearing."  16 VAC 

 5-80-30(B)(1).  The Commission may also take additional evidence 

 if "[t]he record of the proceedings before the appeals examiner 

 is insufficient to enable the commission to make proper, 

 accurate, or complete findings of fact and conclusions of law."  

 16 VAC 5-80-30(B)(2).  

         It is apparent from the record that the person to whom 

 Garland was referring in his August 1 statement to the claims 

 deputy was Davis.  Garland cannot claim, therefore, to have 

 exercised due diligence in obtaining the statement from Davis.  

 Although he did not have the benefit of the Davis affidavit at 

 the appeals examiner's hearing, Garland was able to 

 cross-examine the employer's witnesses.  See Peet v. Peet, 16 

 Va. App. 323, 327, 429 S.E.2d 487, 490 (1993) (distinguishing 

 intrinsic from extrinsic fraud because a party can "ferret out 

 and expose false information presented to the trier of fact" 

 through cross-examination).  And the special examiner did not 

 make any findings of fact that specifically contradicted Davis' 

 affidavit.  Finally, the record was sufficient for the 

 Commission to decide this case.  Accordingly, Garland failed to 

 satisfy the requirements for submitting additional evidence.

 Request to Remand

         Garland contends the circuit court erred by not remanding 

 the case to the Commission in light of the evidence he proffered 

 of fraud.  Garland concedes that he has alleged intrinsic, not 

 extrinsic, fraud.

         If an aggrieved party "alleges in his petition for review 

 that the [Commission] decision was procured by extrinsic fraud 

 committed by a successful party" and presents prima facie 

 evidence of such fraud, then "the circuit court shall remand the 

 case to the Commission for a hearing on the issue."  Jones v. 

 Willard, 224 Va. 602, 608, 299 S.E.2d 504, 508 (1983). 

         In his initial petition for judicial review, Garland did 

 not allege that the decision against him had been procured by 

 fraud and he did not request that the trial court remand the 

 case to the Commission for further proceedings.  He did not 

 exercise due diligence in obtaining the Davis affidavit, and the 

 record was otherwise sufficient for the circuit court to 

 adjudicate this matter.  In addition to the fact that the court 

 denied the motion to amend the petition, we have ruled that the 

 court did not have the authority to consider the amended 

 petition.  Thus, the court had no basis for remanding the case 

 to the Commission. 

 

 Sufficiency of the Evidence

 

         "Initially, we note that in 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).  "The commission, not this Court, is charged with 

 resolving questions of witness credibility."  Britt v. Virginia 

 Employment Comm'n, 14 Va. App. 982, 986, 420 S.E.2d 522, 525 

 (1992).

         Code  60.2-618(2) provides that a claimant will be 

 disqualified from receiving unemployment benefits if he is 

 discharged from employment for 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.

 

 Branch v. Virginia Employment Comm'n, 219 Va. 609, 611, 249 

 S.E.2d 180, 182 (1978).  "Whether an employee's behavior 

 constitutes misconduct, however, 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.

         Garland had been warned about being late to work and 

 leaving work without permission.  Two days before his July 14 

 absence, Garland completed a three-day suspension for tardiness.  

 The employer's evidence, when viewed in a light most favorable 

 to the Commission, established that Garland intentionally missed 

 work on July 14 because he did not want to work with a certain 

 co-worker.  Garland's recurrent attendance problems, coupled 

 with his intentional absence following so closely after a 

 suspension, constituted misconduct connected with work.

         Garland contends the employer failed to prove misconduct 

 because, while the incident leading to his termination was an 

 unexcused absence, his prior warnings were for tardiness and 

 leaving work early.  We disagree.  Tardiness, leaving work 

 early, and absenteeism are all attendance-related issues.  

 Moreover, the evidence sufficiently proved that Garland's last 

 absence was volitional.  Cf. Borbas v. Virginia Employment 

 Comm'n, 17 Va. App. 720, 723-24, 440 S.E.2d 630, 632 (1994) 

 (finding no misconduct where the claimant was discharged for 

 three unrelated instances of simple negligence).

         Finally, Garland asserts that the Commission improperly 

 rejected the appeals examiner's credibility determinations.  But 

 the appeals examiner's credibility determinations were limited 

 to a finding that Braxton and Garland were equally believable, 

 and she made no reference to the witnesses' demeanor.  The 

 special examiner did not specifically reject the appeals 

 examiner's credibility determination, but rather, he rejected 

 the conclusion that the parties' evidence was in equipoise.  We 

 cannot conclude, therefore, that, as a matter of law, the 

 evidence was insufficient to support the special examiner's 

 findings of fact.  See Virginia Employment Comm'n v. Peninsula 

 Emergency Physicians, Inc., 4 Va. App. 621, 626, 359 S.E.2d 552, 

 554 (1987).

         "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).  

         The record supports the Commission's finding that Garland 

 presented insufficient evidence of mitigating circumstances.  

 Accordingly, the Commission did not err in disqualifying him 

 from receiving unemployment benefits.  

 

         For the reasons stated above, 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.

 

           There is no evidence in the record supporting the finding 

 that two co-workers heard this statement.  The employer's 

 evidence was that one employee, Davis, reported this particular 

 remark.

           Rule 1:8 permits amendments to pleadings by leave of 

 court.

 

           In Jones, the petitioner alleged fraud and specifically 

 sought reversal of the Commission decision or a remand for 

 further proceedings.  See Jones, 224 Va. at 604, 299 S.E.2d at 

 506.  Our decision in Hoyle does not reflect whether the 

 petitioner had sought to have the matter remanded to the 

 Commission.  See Hoyle, 24 Va. App. at 537, 484 S.E.2d at 533 

 (noting that the trial court remanded the case based on the 

 pleadings, argument of counsel, and the Commission record).

 

           Garland contends in his brief that the trial court erred 

 in not finding that he had proved a prima facie case of 

 intrinsic fraud.  The court did not reach that issue, however, 

 because it denied Garland's motion to amend the petition for 

 judicial review.  And in light of our holding that the circuit 

 court was without authority to permit the amended petition, we 

 do not reach the issue either.

 

  

  

 

 

 

 - 13 -