                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Elder, Bray and Senior Judge Overton


PAUL E. GROVES
                                           MEMORANDUM OPINION *
v.   Record No. 1908-01-2                      PER CURIAM
                                            DECEMBER 11, 2001
VIRGINIA EMPLOYMENT COMMISSION AND
 NAVISTAR INTERNATIONAL TRANSPORTATION d/b/a
 INTERNATIONAL TRUCK AND ENGINE CORPORATION


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    Herbert C. Gill, Jr., Judge

           (Paul E. Groves, pro se, on briefs).

           (Randolph A. Beales, Attorney General;
           Richard B. Zorn, Senior Assistant Attorney
           General; John B. Purcell, Jr., Assistant
           Attorney General, on brief), for appellee
           Virginia Employment Commission.

           No brief for appellee Navistar International
           Transportation d/b/a International Truck and
           Engine Corporation.


     Paul E. Groves appeals a final order of the Circuit Court of

Chesterfield County affirming the decision of the Virginia

Employment Commission (VEC) to disqualify him from receiving

unemployment benefits.   Based upon the administrative record of

proceedings and argument, the circuit court held that evidence

supported the VEC's findings of fact and that the VEC correctly

concluded, as a matter of law, that Groves was discharged for


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
misconduct in connection with his work for Navistar International

Transportation d/b/a International Truck and Engine Corporation

(Navistar) and disqualified for benefits under Code § 60.2-618(2).

Groves appeals that decision, and he contends the circuit court

erred in finding that the VEC properly relied upon Exhibit 9 as

part of the record.   Upon reviewing the record and the briefs of

the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision.    See

Rule 5A:27.

                      ISSUES BARRED ON APPEAL

     Grove lists ten issues on appeal.    However, most of those

issues were not presented to the circuit court for its review.

Those issues are:   whether the deputy of the VEC erred in finding

Groves was qualified for benefits in November 1999; whether the

appeals examiner of the VEC erred in affirming the deputy's

decision; whether the VEC special examiner erred in allowing a

hearing to re-open the case on appeal; whether Navistar showed

good cause to re-open the hearing; whether the appeals examiner

erred in affirming the deputy's decision; and whether the appeals

examiner controlled the order of proof at the April 27, 2000

hearing pursuant to 16 VAC 5-80-20.    The record shows that these

issues were not raised in the circuit court.    Accordingly, these

issues are procedurally barred on appeal.   Whitt v. Race Fork Coal

Corp. and Virginia Employment Comm'n, 18 Va. App. 71, 74, 441

S.E.2d 357, 359 (1994); Rule 5A:18.

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                               BACKGROUND

     Groves was terminated from employment with Navistar in

October 1999 for violating the company's sexual harassment policy.

Groves applied for unemployment benefits, and a deputy determined

Groves was qualified to receive unemployment benefits.     Navistar

appealed that decision, and on December 27, 1999 a hearing was

held before an appeals examiner.    Navistar did not appear at the

hearing.   The appeals examiner affirmed the decision of the

deputy.

     Navistar appealed the decision of the appeals examiner and

requested to re-open the hearing before the appeals examiner.        By

letter dated March 10, 2000 the special examiner granted

Navistar's request and remanded the case to "First Level Appeals"

for the purpose of conducting another hearing "so as to take

additional testimony and evidence."      The letter stated, "[T]he

record of both hearings shall then constitute the record for the

issuance of a new decision."

     On April 27, 2000 the second hearing was held before the

appeals examiner.   On May 15, 2000, the appeals examiner affirmed

the deputy's determination that Groves was qualified to receive

unemployment benefits.   Navistar appealed the decision of the

appeals examiner to the Commission.      The Commission reversed the

decision of the appeals examiner, finding that Groves was

disqualified for unemployment compensation.     Groves appealed the

Commission's decision to the circuit court, and the circuit court

                                 - 3 -
affirmed the decision of the Commission.     Groves filed a motion

for reconsideration in the circuit court, which the court denied.

Groves appeals the decision of the circuit court.

     "On review, [we] must consider the evidence in the light most

favorable to the finding by the Commission."     Virginia Employment

Comm'n v. Peninsula Emergency Physicians, Inc., 4 Va. App. 621,

626, 359 S.E.2d 552, 554-55 (1987).     Code § 60.2-625 sets forth

the standard of "judicial review" for appeals from the decisions

of the VEC.    "[I]n such cases . . . the Commission's findings of

fact, if supported by evidence and in the absence of fraud, are

conclusive."    Lee v. Virginia Employment Comm'n, 1 Va. App. 82,

85, 335 S.E.2d 104, 106 (1985).   Upon our review, we conclude that

the VEC's findings of fact are supported by evidence and are

therefore binding on appeal.

     The evidence showed that Navistar had a written policy

prohibiting sexual harassment by employees in the workplace.

Groves acknowledged he was aware of the policy.

     Groves was a parts sales manager for Navistar.      He had been

employed with the company for fifteen years.     On September 29,

1999 Misty Gray, who also worked in parts sales, accompanied

Groves on a series of sales calls.      Gray had been employed with

Navistar for about one and one-half years.     When Groves and Gray

returned from the sales calls, other employees of Navistar could

see that Gray was upset.   Gray reported that Groves made verbal

and physical sexual advances toward her that day.     Gray reported

                                - 4 -
that Groves told her he didn't "mind watching [her] bend over."

Gray also stated that Groves later parked the car, kissed her, and

touched her despite her protests.

     John Martinicky, the manager of corporate security for

Navistar, interviewed Groves concerning Gray's allegations.

Groves admitted to Martinikcy that he told Gray he liked to "watch

her bend over."   Gray had indicated that this remark made her feel

uncomfortable.    Groves testified at the hearing that he did not

recall making the statement to Martinicky that he told Gray he did

not mind seeing her bend over.

     The special examiner found Groves' credibility was

"substantially compromised" and that Gray's testimony was credible

concerning the incidents.   He based that finding not only on

Gray's testimony at the April 27, 2000 hearing, but also on the

fact that she took prompt steps to bring the matter to the

attention of management and the police.   The special examiner

found that Groves was disqualified for unemployment compensation

because he was discharged from work due to misconduct in

connection with work.   The special examiner also referenced

Exhibit 9, a copy of Martinicky's notes concerning interviews he

conducted with Groves and Gray after the incident, in his

decision.

     At the hearing in the circuit court, Groves argued that

Exhibit 9 was not properly part of the record for consideration by

the special examiner.   In its May 15, 2001 letter opinion, the

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circuit court found that the issue of whether the special examiner

erred in considering Exhibit 9 was not properly before the court

because Groves had not pled this issue in his Petition for

Judicial Review.    In an alternative finding, the circuit court

found that Exhibit 9 was properly part of the record because

Groves had ample opportunity to review the documents and because

Groves' counsel had the opportunity to cross-examine Martinicky,

the author of the documents, at the hearing.       Accordingly, the

circuit court held that the VEC did not err in considering Exhibit

9 as part of the record.

                                 ANALYSIS

                            I.    Exhibit 9

     Appellant argues Exhibit 9 was not properly considered by the

VEC as part of the record in the case because the page in the

transcript of the April 27, 2000 hearing on which the exhibits are

listed states:   "(None of the exhibits were officially entered

into the record.)."    However, assuming the issue was properly

before the circuit court, the record indicates that the documents

were accepted by the appeals examiner and that Groves did not

object to the admission of Exhibit 9 into the record at the April

27, 2000 hearing.    Moreover, Groves' counsel indicated he had "had

a chance to review" the document, and he relied on the document in

his cross-examination of Martinicky.        At the end of the hearing,

the appeals examiner asked Groves' counsel if he had any

objections to information that was submitted at the hearing.

                                  - 6 -
Groves' counsel replied, "My only objection to . . . the summation

of the conversation with Mr. Martinicky is his opinion at the

bottom of the last page."   Counsel indicated that he believed the

last page of the exhibit contained a sentence regarding

Martinicky's opinion that Groves was being untruthful in the

interview.   Groves' counsel asked that the appeals examiner

disregard that statement only.    When the appeals examiner asked

Groves' counsel if he had any other objections, counsel replied,

"No, Sir."   The appeals examiner then stated, "I'm going to submit

that entire document as Exhibit Number 9 . . . ."   Accordingly,

Groves did not object to the exhibit becoming part of the record

in the case.   See Rule 5A:18.

     Moreover, despite the notation in the transcript that no

exhibits were "officially" made part of the record, Exhibit 9 was

placed in the VEC's file and became part of the VEC record for

purposes of the VEC's determination of the claim.   Furthermore,

the March 10, 2000 letter remanding Groves' case to the first

level of appeals for the purpose of conducting the second hearing

on April 27, 2000 stated that the record of that hearing, in

addition to the record of the previous hearing, would constitute

the record for the issuance of a new decision.   Therefore, the

exhibit was a part of the record and the documents contained

therein were properly considered by the VEC in making its findings

of fact.   This action of accepting the exhibit into the record,

coupled with Groves' admission that he had had an opportunity to

                                 - 7 -
review the documents, Groves' use of the documents in

cross-examination, and his failure to object to the admission of

the documents, indicates that Groves' right to a fair hearing was

not denied.   See Snyder v. Virginia Employment Comm'n, 23 Va. App.

484, 488-89, 477 S.E.2d 785, 787 (1996).   If Groves had chosen to

do so, at the April 27, 2000 hearing he could have stated his

general objections to the exhibit or statements therein, and

offered rebuttal evidence concerning what he contended were

inaccuracies in the exhibit.   However, other than the objection to

the last page of the document, he did not object to the overall

admission of the evidence.   Accordingly, the circuit court did not

err in ruling that the VEC properly considered Exhibit 9 as part

of the record.

                 II.   Disqualification for Benefits

     Code § 60.2-618(2) provides for disqualification from receipt

of unemployment benefits if the VEC finds that the employee was

discharged for work misconduct.   "[T]o establish misconduct [the]

employer ha[s] the burden of proving that the [employee]

deliberately or willfully violated a company rule."    Bell Atlantic

v. Matthews, 16 Va. App. 741, 745, 433 S.E.2d 30, 32 (1993).

          [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


                                - 8 -
            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).    "[O]nce the employer has borne [this]

burden . . . [it] 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

en banc, 9 Va. App. 225, 385 S.E.2d 247 (1989).    Absent evidence

to "explain or justify" such misconduct and "show mitigating

circumstances, the commission must find that benefits are barred."

Id.   "'Whether an employee's behavior constitutes misconduct,

however, is a mixed question of law and fact reviewable by this

court on appeal.'"    Wells Fargo Alarm Servs., Inc. v. Virginia

Employment Comm'n, 24 Va. App. 377, 384, 482 S.E.2d 841, 844

(1997) (citation omitted).

        The special examiner found that Navistar's policy

prohibiting sexual harassment at work was reasonably designed to

protect legitimate business interests.   Furthermore, the special

examiner believed the evidence presented by Gray and the other

Navistar employees and did not accept Groves' testimony denying

the incident.   In making the credibility determination, the

special examiner pointed to Groves' interview with Martinicky

wherein Groves originally admitted that he made the comment to

Gray.   The determination of a witness' credibility is within the

fact finder's exclusive purview.   See Goodyear Tire & Rubber Co.


                                - 9 -
v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).    The

credibility finding is supported by evidence in the record.

Furthermore, the special examiner found that Groves occupied a

supervisory position with the company which acted as an

aggravating circumstance for his conduct.

     Groves presented no mitigation evidence.   He denied making

the comment, and he denied that he touched Gray.   Therefore, we

cannot say as a matter of law that Groves met his burden of

proving mitigating circumstances.   Accordingly, we conclude that

the special examiner's findings of fact as to Groves' credibility,

as well as Groves' failure to present sufficient evidence of

mitigating circumstances to avoid disqualification for

work-related misconduct, are supported by credible evidence.   In

light of the evidence presented before the VEC, we cannot say the

record as a whole would lead a reasonable mind necessarily to a

different conclusion than that reached by the VEC.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                          Affirmed.




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