                    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


     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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.

                                - 2 -
     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."



                                 - 3 -
        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. 1     There was no specific


        1
       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.

                                   - 4 -
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.



                               - 5 -
     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

                                - 6 -
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. 2   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.



     2
         Rule 1:8 permits amendments to pleadings by leave of
court.


                                - 7 -
     "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

                               - 8 -
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

                                - 9 -
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). 3

     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. 4




     3
       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).
     4
       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.


                              - 10 -
                     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.




                               - 11 -
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).



                              - 12 -
     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.




                                - 13 -
     For the reasons stated above, the judgment of the circuit

court is affirmed.

                                                        Affirmed.




                             - 14 -
