                      COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia


ROBERT S. PECK
                                          MEMORANDUM OPINION * BY
v.   Record No. 2469-01-4                  JUDGE RICHARD S. BRAY
                                               AUGUST 20, 2002
VIRGINIA EMPLOYMENT COMMISSION AND
 KAVITA D. RUCHANDANI



              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                    Gaylord L. Finch, Jr., Judge

           Robert S. Peck, pro se.

           Robert R. Dively, Assistant Attorney General
           (Randolph A. Beales, Attorney General;
           Richard B. Zorn, Senior Assistant Attorney
           General; Lisa J. Rowley, Assistant Attorney
           General, on brief), for appellee Virginia
           Employment Commission.

           No brief of argument for appellee Kavita D.
           Ruchandani.


     Robert S. Peck (employer) appeals a final order of the trial

court, which affirmed an award of unemployment benefits to Kavita

D. Ruchandani (claimant) by the Virginia Employment Commission

(VEC).   Employer complains he was improperly precluded from

presenting evidence that claimant voluntarily resigned her

employment without good cause and, further, that the VEC

erroneously found claimant was neither discharged for misconduct

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
nor voluntarily resigned employment.     Finding no error, we affirm

the trial court.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

                                  I.

     In undertaking judicial review of an administrative

decision of the VEC pursuant to Code § 60.2-625(A), "the courts

must consider the evidence in the light most favorable to the

finding by the [VEC]."     Virginia Employment Comm'n v. Peninsula

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

554 (1987) (citation omitted).    "[T]he [VEC] is charged with the

responsibility of resolving questions of credibility and of

controverted facts."     Virginia Employment Comm'n v. Gantt, 7

Va. App. 631, 635, 376 S.E.2d 808, 811, aff'd en banc, 9

Va. App. 225, 385 S.E.2d 247 (1989).     Thus, factual

determinations of the VEC "supported by evidence[,] . . . in the

absence of fraud, shall be conclusive, and the jurisdiction of

the court shall be confined to questions of law."      Code

§ 60.2-625(A); see Lee v. Virginia Employment Comm'n, 1 Va. App.

82, 85, 335 S.E.2d 104, 106 (1985).

     Here, findings of fact reported by the VEC and supported by

the record disclosed claimant entered into the subject

employment as a "nanny/housekeeper" on September 11, 2000.      Her



                                 - 2 -
duties included "picking [employer's son] up from school" in

Washington D.C., "some meal preparation" and "light housework."

     In October 2000, employer and his wife began "exploring the

possibility of moving" and, "intend[[ing] to . . . show the

house" to potential buyers on November 4 or 5, wife "wanted

[claimant] to organize . . . the basement" by "pack[ing] various

materials."   Accordingly, on October 30, wife advised claimant

that wife "needed to pick up boxes," and claimant volunteered

for the task.   However, when claimant informed wife the

following morning that she did not intend to obtain the boxes

until November 3, wife, "very upset because she did not believe

. . . there would [then] be sufficient time to prepare the house

for showing," "obtained the boxes herself."   Later in the day,

employer returned home and "discharged" claimant, effective

November 11, 2000.

     The VEC further found that wife had "primary interaction

with the claimant on a day-to-day basis," was "happy with [her]

'on average,'" and had "agreed to assist [her] in locating other

employment as a nanny," including "a favorable reference."    Wife

"emphasiz[ed]" in her testimony that claimant was "terminated"

"only because she had failed to pick up the boxes . . . ."

However, employer had already decided to "replace . . . claimant

because she seemed more interested in performing the duties of a

nanny only and seemed to object to doing housework chores."    In

contrast to both employer and his wife, claimant "was under the

                               - 3 -
impression that her job would . . . end . . . November 10 . . .

because employer felt" the commute to his new residence "would

be too far."

     Once unemployed, claimant filed for related benefits with

the VEC.   Advised of the application, employer objected,

reporting claimant was "discharged" for "[r]efusal to carry out

duties when assigned despite repeated warnings."   When a VEC

Deputy subsequently determined claimant eligible for benefits,

employer appealed, and an "Appeals Examiner," after conducting

related hearings on January 9 and 31, 2001, affirmed "the

determination of the Deputy."   Employer further appealed to the

commission, and a "Special Examiner" "adopted" the "findings of

fact made by the Appeals Examiner," together with "certain

[specified] corrections and additions," and ruled claimant

neither resigned employment nor was discharged for misconduct. 1

Employer thereafter petitioned the trial court for judicial

review, which resulted in a further affirmation of the VEC and

the instant appeal.

                                 II.

     Employer first contends the "Appeals Examiner" violated due

process by refusing to allow him to present evidence and

cross-examine claimant with respect to the issue of resignation.


     1
       The commission characterized the incident arising from the
packing boxes as a "misunderstanding" between claimant and
employer's wife, not "misconduct in connection with [claimant's]
work."

                                - 4 -
He asserts on brief that such testimony was relevant "to prove

. . . [claimant] had resigned" prior to "discharge" and,

therefore, was, "at most, eligible for two weeks of employment

benefits."     See Code § 60.2-612(8); 2 see also Actuarial Benefits

& Design Corp. v. Virginia Employment Comm'n, 23 Va. App. 640,

645, 478 S.E.2d 735, 737 (1996) (limiting unemployment benefits

to two weeks upon termination following notice of resignation).

     "It is well-settled that when a party's evidence has been

ruled inadmissible, the party must proffer or avouch the

evidence for the record in order to preserve the ruling for

appeal; otherwise, the appellate court has no basis to decide

whether the evidence was admissible."          Smith v. Hylton, 14

Va. App. 354, 357-58, 416 S.E.2d 712, 715 (1992) (citing

     2
         Code § 60.2-612(8) states:

             An unemployed individual shall be eligible
             to receive benefits for any week only if the
             Commission finds that:

                       *   *   *    *      *   *   *

                  (8) He has given notice of resignation
             to his employer and the employer
             subsequently made the termination of
             employment effective immediately, but in no
             case to exceed two weeks for which he would
             have worked had the employee separated from
             employment on the date of termination as
             given in the notice; provided, that the
             claimant could not establish good cause for
             leaving work pursuant to § 60.2-618 and was
             not discharged for misconduct as provided in
             § 60.2-618.




                                   - 5 -
Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81

(1977)).    "The proffer may consist of a unilateral

representation of counsel, if unchallenged, or a mutual

stipulation of the proffered testimony.     Absent such

representation of counsel, or stipulation, the ruling will not

be considered on appeal."     Klein v. Klein, 11 Va. App. 155, 160,

396 S.E.2d 866, 868 (1990).

     Here, employer failed to make the requisite proffer for the

record.    Accordingly, we cannot ascertain on appeal whether the

evidence in issue was relevant to determination of the claim,

thereby precluding proper appellate review of the question.

                                 III.

     Employer next maintains his evidence established a voluntary

resignation of employment by claimant.    We disagree.

     Code § 60.2-618(1) disqualifies "an individual for

[unemployment] benefits . . . if the commission finds such

individual is unemployed because he left work voluntarily without

good cause . . . ."   Id.   The burden is on the employer to prove

an employee "left work voluntarily."     Shuler v. Virginia

Employment Comm'n, 9 Va. App. 147, 149-50, 384 S.E.2d 122, 124

(1989).    "'Good cause' requires a mixed determination of law and

fact . . . which is reviewable on appeal."    Virginia Employment

Comm'n v. Fitzgerald, 19 Va. App. 491, 493, 452 S.E.2d 692, 693

(1995).



                                 - 6 -
     In affirming the decision of the "Appeals Examiner" on the

instant record, the VEC specifically found "employer or his wife

. . . decided to replace the claimant with someone who was

better at the housekeeping aspects of the job."    Under such

circumstances, the VEC correctly reasoned that "the fact . . .

claimant may have agreed November 10, 2000, would be her last

day of work is insufficient to establish the requisite voluntary

notice" of resignation contemplated by Code § 60.2-612(8).      See

Shuler, 9 Va. App. at 150-51, 384 S.E.2d at 124 ("The term

'voluntary' connotes '[u]nconstrained by interference;

unimpelled by another's influence; spontaneous; acting of

oneself . . . [r]esulting from free choice.'").   Accordingly,

employer failed to satisfy his burden of proof, and the evidence

supports the VEC's decision.

                                IV.

     Lastly, employer maintains claimant's actions constituted

"misconduct" that disqualified her from unemployment benefits.

Again, we disagree.

     "An individual shall be disqualified for benefits upon

separation from the last employing unit . . . if discharged for

misconduct connected with . . . work."   Code § 60.2-618.

          [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

                               - 7 -
          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).   Like resignation, the employer bears the burden

of proving such misconduct, and the term "should not be so

literally construed as to effect a forfeiture of benefits by an

employee except in clear instances."    Kennedy's Piggly Wiggly

Stores, Inc. v. Cooper, 14 Va. App. 701, 705, 707-08, 419 S.E.2d

278, 280, 282 (1992).    "Whether an employee's behavior constitutes

misconduct . . . is a mixed question of law and fact reviewable by

this court on appeal."    Israel v. Virginia Employment Comm'n, 7

Va. App. 169, 172, 372 S.E.2d 207, 209 (1988) (citation omitted).

     The record before us suggests no violation of an employment

rule, and the factual findings of the VEC, supported by the

evidence, established no willful disregard of employer's interests

by claimant.   She was not directed to obtain the packing boxes,

and the responsibility was not among her assigned duties.    To the

contrary, claimant volunteered for the task only as an

accommodation to employer's wife.    Accordingly, the VEC correctly

determined claimant was not discharged for employment-related

misconduct.

     We, therefore, affirm the decision of the commission.

                                                          Affirmed.




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