                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Clements and Haley


MARY P. WALDEMAR
                                                                  MEMORANDUM OPINION*
v.      Record No. 1393-05-2                                          PER CURIAM
                                                                    DECEMBER 13, 2005
VIRGINIA EMPLOYMENT COMMISSION,
 PHARMACEUTICAL RESEARCH ASSOCIATES
 AND McDONALD’S CORPORATION


                  FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
                                Richard S. Blanton, Judge

                  (Robert P. Dwoskin, on brief), for appellant.

                  No brief for appellees.


        Mary P. Waldemar (claimant) contends the Circuit Court of Prince Edward County (trial

court) erred in affirming the decision of the Virginia Employment Commission (Commission)

denying her claim for unemployment compensation benefits. Claimant contends the Commission

erred in (1) finding that she was not entitled to benefits because she voluntarily quit her job with

McDonald’s Corporation (employer) without good cause; and (2) not allowing her husband to

testify. Upon reviewing the record and the opening brief, we conclude that this appeal is without

merit. Accordingly, we summarily affirm the trial court’s decision. See Rule 5A:27.

                                              Background

        “[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.


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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 on December 9, 2003, claimant gave birth to a

daughter born twelve weeks premature. The infant spent two months in a hospital neonatal

intensive care unit and was discharged on February 2, 2004. On June 6, 2004, employer hired

claimant as a food service worker.1 Employer paid claimant $6.00 per hour. Claimant voluntarily

quit her job with employer on June 26, 2004. At that time, she was working the evening shift, from

6:00 p.m. to midnight, on a varied weekly schedule.

        Claimant testified that she voluntarily quit on June 26, 2004, because on that date, she

learned that her current babysitter would not be able to care for her daughter as of July 1, 2004, and

she needed to stay home with her infant daughter. Claimant’s babysitter was “a local person,” who

had cared for claimant’s daughter in her home where she had no other children. Claimant admitted

that she did not request a leave of absence in order to secure a new babysitter or a transfer to another

shift. In addition, she did not advertise for another babysitter. Rather, she asked several neighbors

if any of them could care for her child, but no one was able to do so. Claimant stated that she did

not “feel comfortable having somebody that’s a complete stranger watch [her] child with all the

problems that she had.” Claimant contended that she could not place her child in daycare because

her prematurity made her susceptible to becoming sick if exposed to other children. The appeals

examiner did not allow claimant’s husband to testify after claimant stated that he was there solely to

support her testimony.



        1
       Claimant was previously employed by Pharmaceutical Research Associates until
December 2003.
                                         -2-
        In a letter admitted as an exhibit at the hearing and dated June 25, 2004, Dr. Lori Balaban,

claimant’s daughter’s pediatrician, opined that the infant was more susceptible to illness than

full-term infants of her age. Dr. Balaban also opined that it would be appropriate for claimant to

stay home with her daughter as she would “get much more stimulation from her mother than

another caretaker . . . [and] [f]urther, she is less likely to become ill if she is not exposed to other

children in a daycare situation.”

        In affirming the decision of the appeals examiner denying benefits to claimant, the

Commission found as follows:

                         The claimant’s concerns about her child were legitimate
                and could have ultimately caused her to quit her job. A finding a
                [sic] good cause, however, is dependent on her pursuing every
                reasonable alternative, and she has not shown she has done this.
                She learned her babysitter was leaving and she gave her employer
                her notice the same day. She testified the sitter was able to watch
                her child for at least another six days, and she could have
                continued to work while looking for another sitter. In addition, she
                did not request a leave of absence in order to be able to take
                additional time to look for a sitter. Finally, she had the alternative
                to call in absent once her sitter was no longer available, to continue
                to look for a sitter. If she had exhausted all of these avenues and
                could not find a sitter, she may have proved by a preponderance of
                the evidence that she had good cause to quit, but because she quit
                immediately upon learning that her sitter would no longer be
                available, she has not met that burden of proof. Accordingly, the
                Commission finds the claimant voluntarily quit her job without
                good cause and would be disqualified under [Code § ]
                60.2-618(1) . . . .

        On appeal, the trial court affirmed the Commission’s decision.

                                                 Analysis

                                I. Good Cause for Voluntarily Quitting

        If an employee voluntarily leaves employment without good cause, that individual

becomes disqualified for unemployment compensation. Code § 60.2-618(1). Here, the

Commission found and claimant concedes that she left her employment voluntarily. The issue in


                                                   -3-
dispute is whether she had good cause for doing so. The question of good cause must be

considered with a two-part analysis. The Commission and reviewing courts must first apply an

objective standard to the reasonableness of the employment dispute and then to the

reasonableness of the employee’s efforts to resolve that dispute before leaving. Umbarger v.

Virginia Employment Comm’n, 12 Va. App. 431, 435, 404 S.E.2d 380, 383 (1990). “In making

this two-part analysis, the claimant’s claim must be viewed from the standpoint of a reasonable

employee. . . . ‘Factors that . . . are peculiar to the employee and her situation are factors which

are appropriately considered as to whether good cause existed . . . .’” Id. at 435-36, 404 S.E.2d

at 383 (citations omitted).

       Claimant’s conduct does not rise to a level sufficient to satisfy the second part of the

Umbarger analysis. “[A]n employee, who for some reason, becomes dissatisfied with his work,

must first pursue every available option open to him whereby he might alleviate or correct the

condition of which he complains before relinquishing his employment.” Lee v. Virginia

Employment Comm’n, 1 Va. App. 82, 85, 335 S.E.2d 104, 106 (1985). Claimant quit her job on

the same day her babysitter told her that she would no longer be able to care for claimant’s

daughter. Claimant made no effort to find another babysitter prior to quitting her job, other than

contacting a couple of neighbors. She had at least six days from the time she learned she would

no longer have her current babysitter, until July 1, 2004, yet she quit on June 26, 2004. She did

not request a leave of absence or a shift change in order to allow her time to secure another

babysitter. The record does not disclose the required “steps that could be reasonably expected of

a person desirous of retaining his [or her] employment before hazarding the risks of

unemployment.” Id.




                                                -4-
       Having found that claimant failed the second element of the Umbarger two-part analysis,

we need not discuss the first. The Commission and the trial court did not err in disqualifying

claimant from unemployment benefits for voluntarily quitting without good cause.

                                    II. Husband’s Testimony

       When the appeals examiner asked claimant what the substance of her husband’s

testimony would be, claimant responded, “he can just verify what the sitter and ah, and about our

daughter.” Upon concluding claimant’s testimony, the appeals examiner stated, “I don’t need the

testimony of your husband ma’am.”

       On appeal, the Commission found as follows:

               [S]ince the subsequent employer did not appear at the hearing or
               offer any testimony to rebut what [claimant] had offered, the
               Appeals Examiner correctly ruled that [claimant’s husband’s]
               testimony was unnecessary. Given that the Appeals Examiner was
               simply following accepted procedure in conducting an orderly
               hearing, the Commission must find that his actions did not prevent
               the claimant from receiving a fair hearing.

       Where, as here, claimant indicated before the Commission that her husband’s testimony

would have been merely corroborative and cumulative of her testimony, which was not rebutted

by employer, we find no error in the Commission’s decision not to allow such testimony.

       For these reasons, we affirm the trial court’s decision.

                                                                                        Affirmed.




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