                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia


NAN S. VICK
                                             MEMORANDUM OPINION * BY
v.         Record No. 0722-96-2           JUDGE ROSEMARIE ANNUNZIATA
                                                 MARCH 18, 1997
VIRGINIA EMPLOYMENT COMMISSION, ET AL.


              FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
                 J. Warren Stephens, Judge Designate
          Nan S. Vick, pro se.

          Lisa J. Rowley, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellees.



     Nan S. Vick (appellant) appeals a final order of the Circuit

Court of Nottoway County affirming the decision of the Virginia

Employment Commission (VEC) to disqualify her from receiving

unemployment benefits for having voluntarily left work with

Foote, Inc. (employer), without good cause.      See Code
                 1
§ 60.2-618(1).       This finding was initially rendered by a VEC
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      Code § 60.2-618 provides, in part:

               An individual shall be disqualified for
          benefits upon separation from the last
          employing unit for whom he has worked thirty
          days or from any subsequent employing unit:

               1. For any week benefits are claimed
          until he has performed services for an
          employer during thirty days, whether or not
          such days are consecutive, and subsequently
          becomes totally or partially separated from
          such employment, if the Commission finds such
          individual is unemployed because he left work
claims deputy.   On appeal, evidence was taken before a VEC

appeals examiner who affirmed the claims deputy.   On further

appeal, a VEC special examiner heard oral argument but took no

further evidence; the special examiner affirmed the appeals

examiner.   The matter was then appealed to the circuit court.   On

appeal to this Court, appellant contends that (1) contrary to the

ruling of the circuit court, the record does not support the

VEC's findings of fact; (2) the VEC's findings were procured by

fraud on the part of employer; (3) contrary to the ruling of the

circuit court, the VEC erred as a matter of law in concluding

appellant left work without good cause; and (4) the VEC special

examiner erred in denying appellant's request to present

additional evidence.   We disagree and affirm.
     "An individual shall be disqualified for [unemployment]

benefits . . . if the commission finds such individual is

unemployed because [she] left work voluntarily without good cause

. . . ."  Code § 60.2-618(1).
          "[G]ood cause" . . . "has not been
          specifically defined by the legislature or
          the Supreme Court." However, the consistent
          view of the [VEC], "acquiesced in by the
          General Assembly," has required an employee
(..continued)
          voluntarily without good cause. As used in
          this chapter "good cause" shall not include
          (i) voluntarily leaving work with an employer
          to become self-employed, or (ii) voluntarily
          leaving work with an employer to accompany or
          to join his or her spouse in a new locality.
          An individual shall not be deemed to have
          voluntarily left work solely because the
          separation was in accordance with a
          seniority-based policy.




                               - 2 -
           to "take those steps that could be reasonably
           expected of a person desirous of retaining
           his [or her] employment before hazarding the
           risks of unemployment."


Virginia Employment Comm'n v. Fitzgerald, 19 Va. App. 491, 493,

452 S.E.2d 692, 693 (1995) (citations omitted). 2    Determination

of "good cause" involves a two-part analysis.    The VEC and

reviewing courts must apply an objective standard, first 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).   An employee may not

rely upon his or her own "unreasonable and purely subjective

perception" to justify voluntary unemployment.      Id.

     The issue whether an employee voluntarily quit without good

cause involves a mixed question of law and fact reviewable on

appeal.   Fitzgerald, 19 Va. App. at 493, 452 S.E.2d at 693.

However, this Court must give deference to the VEC's findings of

fact underlying its decision. Indeed,
          [o]n review, [we] must consider the evidence
          in the light most favorable to the finding by
          the [VEC]. Code § 60.2-625 sets forth the
          standard of "judicial review" for appeals
          from the decisions of the VEC. "[I]n such
          cases . . . the [VEC's] findings of fact, if
          supported by evidence and in the absence of
          fraud, are conclusive." The VEC's findings
     2
      In construing the meaning of the phrase "good cause," the
VEC has limited it to those factors or circumstances which are so
substantial, compelling and necessitous as would leave the
claimant no other reasonable alternative to quitting. Phillips
v. Dan River Mills, Inc., Commission Decision 2002-C (June 15,
1955).




                               - 3 -
            of fact need only be "supported by evidence"
            for them to be binding on appeal, unless we
            conclude that no evidence supports the
            findings or that they were obtained by fraud.


Bell Atlantic v. Matthews, 16 Va. App. 741, 745, 433 S.E.2d 30,

32 (1993) (citations omitted).

                     I.   VEC'S FACTUAL FINDINGS

     We find evidence in the record to support the VEC's factual

findings.

     Appellant worked as a bookkeeper and secretary for employer,

a retailer and wholesaler of tires and automotive services, from

February 1991 until May 25, 1994.    William C. Foote, general

manager and part owner of employer, was appellant's supervisor.

William F. Foote, the father of William C., was the residual

owner but was disabled from working.     David Williams was

employer's service manager; he was not one of appellant's

supervisors.
     William C. and Williams testified that, during her tenure,

appellant developed a poor attitude toward her coworkers and

customers and was unable to get along with any of her coworkers.

In particular, Williams and appellant could not get along.

Appellant attributed the conflict to Williams' sexual harassment

of her.   Williams, however, denied that he had sexually harassed

appellant in any way.     On cross-examination by appellant's

counsel, Williams denied specific allegations of sexual

harassment, including his exposing himself to appellant and his

directing lewd comments at appellant or stating them in her


                                 - 4 -
presence.    William C. testified that the alleged incident of

Williams exposing himself did not occur.   Although William C. was

aware of the conflict between appellant and Williams, he

testified that he was unaware that it had anything to do with

sexual harassment.    He stated that appellant never complained of

sexual harassment.

     Employer had no written policy for resolving disputes among

coworkers.    William F. attempted to resolve the conflict between

appellant and her coworkers.   William C. admitted that he had

directed Williams and appellant to work out their problems

themselves.   Appellant quit her job at least three times during

the year prior to May 25, 1994 because of personality conflicts

with other employees.   Each time, she sought to be reinstated and

employer allowed her to return.
     Appellant quit because of the events of May 25, 1994.       On

that day, appellant took responsibility for a mistake Williams

made and was then admonished by William C. for the manner in

which she handled it.   The unfairness of such treatment in

appellant's eyes was compounded by the fact that she had

undertaken Williams' work, an individual with whom she was in

continual conflict.   Although appellant's aggravation tempered

and she continued to work, it was reignited when William C.

referred to her as "Queenie" in front of a customer.   At that

point, appellant told William C. that she quit.

     Appellant testified that William C. had called her "Queenie"




                                - 5 -
numerous times and that she had repeatedly asked that the verbal

abuse stop.   William C. denied both allegations.     Appellant

testified that she probably would have quit notwithstanding being

yelled at and called "Queenie" by William C.     She testified that

it was unreasonable for employer to assume she would perform

Williams' work duties, when she considered Williams to be

sexually harassing her.    She admitted, however, that she had

previously completed similar tasks.      After she quit, appellant

again sought to be reinstated.     This time, however, employer

refused to rehire her.
                  II.    FINDINGS PROCURED BY FRAUD

     Appellant contends that even if the record supports the

VEC's findings, those findings are not conclusive because they

were procured by fraud.    The record shows that the issue of fraud

was not raised in the circuit court.     Appellant made no reference

to fraud in her petition for judicial review, and the circuit

court specifically found that "fraud has not been alleged."

Accordingly, appellant's contention on appeal is procedurally

barred.   Rule 5A:18.

                          III.   "GOOD CAUSE"

     We agree with the trial court that the VEC properly applied

the law to its findings of fact.     While the events of May 25 may

have been a "reasonable employment dispute," the record shows

that appellant took no measure, reasonable or otherwise, to

resolve that dispute before leaving employment.       Cf. Umbarger, 12




                                 - 6 -
Va. App. at 437, 404 S.E.2d at 384.

     Moreover, although appellant contends that the events of May

25 were merely the end of a continuing pattern of sexual

harassment, the record supports the VEC's finding that this was

not the case.   Most importantly, Williams denied any act of

sexual harassment in general and specifically denied each of the

acts appellant's counsel alleged.   As trier of fact, the appeals

examiner was entitled to credit Williams' testimony.        Moreover,

although William C. was aware of the conflict between appellant

and Williams and did little if anything to resolve it, he was

unaware that the conflict involved sexual harassment.       While an

ongoing pattern of sexual harassment would, we believe, clearly

amount to a "reasonable employment dispute," the record here

belies such a scenario.   Rather, the record supports the finding

that the only ongoing pattern of conflict was a personality

dispute between Williams and appellant.   We find that a

personality dispute among coworkers, without more, is not a

"reasonable employment dispute" amounting to "good cause" to quit
                                                        3
voluntarily within the meaning of Code § 60.2-618(1).
                    IV.   SUPPLEMENTAL EVIDENCE

     Finally, appellant contends the special examiner erred in

failing to allow her to supplement the record taken before the
     3
      The dissent's characterization of the "evidence proved" is
an eloquent recitation of appellant's testimony. That testimony,
however, was mostly contradicted. Well established principles of
appellate review bind us to the VEC's determination that the
events appellant described did not, in fact, transpire.



                               - 7 -
appeals examiner with additional evidence.   However, appellant

failed to raise this contention before the circuit court.

Accordingly, her appellate argument is procedurally barred.   Rule

5A:18.   Moreover, based on appellant's representations the

special examiner determined that each piece of additional

evidence appellant sought to present could have been presented at

the hearing before the appeals examiner through the exercise of

due diligence.
     For the foregoing reasons, the decision of the commission is

affirmed.

                                                         Affirmed.




                               - 8 -
Benton, J., dissenting.

     The evidence proved that Nan S. Vick was the only female

employee at a business that sells, retail and wholesale, tires

and automotive services.   She was a full-time bookkeeper and

secretary.   The general manager testified that her job

performance was good.

     Over a period of years, Vick experienced difficulties with

other employees of the business.   Vick attributed many of those

difficulties to instances of sexual harassment.   The evidence

proved that when Vick complained to the general manager of

problems with employees, he informed Vick and the employees about

whom she complained that they would have to resolve those

disputes among themselves.   At the evidentiary hearing the

general manager testified that Vick's problems with the employees

were "personality conflicts."   Although he was unable to recall

the nature of those disputes, he testified that she had made no

complaints of sexual harassment.
     Although the general manager denied that Vick was sexually

harassed, the evidence proved facts to the contrary.    The

evidence proved that Vick quit her employment on four previous

occasions because of incidents that she believed to be

intolerable harassment.    The evidence also proved that the

business re-employed Vick on each of those occasions.     Although

the evidence does not contain specific details of each of the

incidents that gave rise to her quitting, the evidence does




                                - 9 -
establish that on one occasion Vick quit because of lewd remarks

and harassment from an employee.    The evidence further proved

that the general manager rehired her and required the other

employee to apologize to Vick for lewd comments that the employee

made to Vick.

        The evidence also established that Vick quit her employment

on another occasion because of offensive comments and conduct by

the service manager.    Vick was rehired on that occasion.
        The evidence also proved that a calendar of offensive

photographs of women was hanging in a work area under the control

of the service manager.    The calendar was only removed after a

female customer of the business complained.

        In addition, Vick complained to the general manager that the

service manager exposed his buttocks to her in her office.      The

general manager, who was in the vicinity when that incident

occurred, testified that the service manager was a large man and

that his shirt became untucked when he bent over to pick up an

item.    The service manager testified that when he went into the

office to retrieve an item, his shirt became untucked and his

"butt was showing."    Vick complained when the incident occurred.

However, the service manager told her that if she had not looked

she would not have seen it.    The general manager deemed this

matter to be a "personality dispute."    Vick filed a criminal

complaint charging that the service manager indecently exposed

himself.




                                - 10 -
     These events add to the context of Vick's decision to quit

her employment on May 25 when the general manager, Vick's

immediate supervisor and an owner of the business, referred to

her as "Queenie" in the presence of a customer.    The evidence is

undisputed that the service manager had failed to prepare an

invoice on that day that Vick needed to complete other documents.

Without those documents the customer would be unable to obtain

his vehicle.   When the customer arrived, the service manager was

away from the business.   Because Vick did not have the necessary

paperwork from the service manager, she went to the general

manager to obtain prices to prepare the invoice.   At the

evidentiary hearing, the general manager agreed that the problem

that Vick was encountering with the customer in her office

occurred because of the service manager's lack of attention.
     When Vick obtained the information and returned, the

customer expressed dissatisfaction with the quality of the work

and began to complain.    Vick again sought the general manager.

The testimony is disputed about the discourse that occurred

between Vick and the general manager.   The general manager

testified that Vick inappropriately interfered while he was

talking to customers.    Vick testified that she politely sought to

inform the general manager of her need to have his attention to

resolve the ongoing problem with an irate customer.

     The general manager testified that when he entered Vick's

office he admonished Vick for the way she had approached him




                               - 11 -
while he was talking to a customer.    Vick testified that the

general manager yelled at her and addressed her derogatorily as

"Queenie" in the presence of customers.   Vick became upset and

later that day quit her employment.

     Vick testified that the general manager had called her

"Queenie" on other occasions and she had asked that he not

verbally abuse her.   The general manager testified that he had

never before used that term in addressing Vick and that Vick had

never complained about his use of that term in the past.   He

further testified regarding the term as follows:
          I don't distinctly remember calling her
          Queenie that day. [B]ut . . . it's possible.
           It's not a term, it's a term that I, that's
          used in my family as, a jokingly term, not a
          term that's meant to hurt or anything like
          that. . . . [I]f it did in fact hurt her I
          apologize for it.


     The commission in its findings of fact stated as follows:
          On the claimant's last day of work, May 25,
          1994, the employer was shorthanded and the
          claimant had to deal with customers. At
          least one customer was upset with the work
          performed and the claimant attempted to bring
          this to the attention of the [general
          manager]. At the same time, the claimant was
          required to prepare invoices for work
          performed. This is normally handled by the
          service manager. However, the service
          manager was not at work at this time. During
          the course of this situation, the [general
          manager] referred to the claimant as
          "Queenie" in front of a customer. The
          [general manager] had referred to the
          claimant in this way on a few occasions in
          the past. The claimant had never complained
          to the employer concerning this term.

          On the claimant's last day, she was advised
          that she had to finish some work before she



                              - 12 -
           could go on vacation. She was upset with
           this situation and was also upset because she
           felt she was being forced to do the work of
           another employee during his absence.

          In the past year, the claimant and the
          [service manager] were having difficulties
          getting along. The [general manager] advised
          the claimant and the other employee that they
          would have to work out these difficulties on
          their own.

          In the past several months, the claimant had
          quit on at least three occasions. After each
          of these separations, the claimant went back
          to work for the employer.

     The determination of what constitutes "good cause" is a

mixed question of law and fact reviewable by this Court on

appeal.   See Johnson v. Virginia Employment Comm'n, 8 Va. App.

441, 447, 382 S.E.2d 476, 478 (1989).   "Factors that . . . are

peculiar to the employee and her situation are factors which are

appropriately considered as to whether good cause existed."

Johnson, 8 Va. App. at 451, 382 S.E.2d at 481.
             The purpose of the [Unemployment
          Compensation] Act is to "provide temporary
          financial assistance to [workers] who
          [become] unemployed without fault on their
          part. The statute as a whole . . . should be
          so interpreted as to effectuate that remedial
          purpose implicit in its enactment."

Israel v. Virginia Employment Comm'n, 7 Va. App. 169, 172, 372

S.E.2d 207, 209 (1988).   On this evidence, I would hold that the

evidence does not support the commission's conclusion that Vick

"left work voluntarily without good cause."   Code § 60.2-618(1).

     The record supports Vick's reasonable belief that she was

being harassed and that her employer was unresponsive to her



                              - 13 -
complaints.    Indeed, when the other owner of the business was

asked what the procedure for resolving the conflicts was, he

stated, "Very rarely did I get into that.    That was handled

primarily by [the general manager] . . . I asked [the service

manager] to bear with the situation.     I asked [Vick] several

times to lighten up . . . try smiling."    In addition, when the

service manager was asked why the conflicts remained unsolved, he

testified that "Mrs. Vick would constantly just come up with

something else, a trifling event that she would blow out of

proportion."   The record graphically demonstrates that Vick was

consistently harassed by employees and, when she complained, was

told to work out those problems without any intervention by the

general manager.   She was subject to lewd and offensive remarks

by employees and gained no relief from the general manager.       Only

after she quit her job did the general manager take action.       When

she was rehired, the offending employee was required to

apologize.    Even when the service manager exposed his "butt" to

her, and she reported the matter to the general manager who was

present, no action was taken.    Despite the service manager's

retort, the general manager took no action and did not recognize

these to be instances of harassment.
     Thus, the evidence proved that Vick did not have "the

benefit of an established, designated procedure for addressing

employee grievances."    Umbarger v. Virginia Employment Comm'n, 12

Va. App. 431, 437, 404 S.E.2d 380, 384 (1991).    When Vick



                                - 14 -
complained in the past the general manager instructed her to

resolve the problem without his intervention.    Quitting was the

only recourse through which she was able to obtain relief.

        Furthermore, the general manager acknowledged that he was

familiar with the term "Queenie" and used it in a joking manner

in his personal life.    Moreover, the commission found as a fact

that the general manager referred to Vick in that manner on May

25 in the presence of a customer.    It was an offensive remark,

made in a circumstance to cause humiliation and embarrassment to

Vick.    The record proves that she had no recourse for correcting

the conduct.    The majority states that "[w]hile the events of May

25 may have been a 'reasonable employment dispute,' the record

shows that [Vick] took no measure, reasonable or otherwise, to

resolve that dispute before leaving employment."    Given the

employer's past refusals to intervene and the fact that, this

time, her dispute was with her direct supervisor, I would hold

that Vick reasonably concluded that no avenues were available to

her to utilize in resolving this dispute.
        For these reasons, I would hold that Vick's leaving was for

good cause and that she is not therefore barred from receiving

unemployment benefits.




                                - 15 -
