                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Elder, Bumgardner and Humphreys


BERNARD DUNCAN
                                           MEMORANDUM OPINION *
v.   Record No. 0431-00-2                      PER CURIAM
                                            SEPTEMBER 5, 2000
DATA SERVICES AMERICA AND
 VIRGINIA EMPLOYMENT COMMISSION


            FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                  Charles L. McCormick, III, Judge

           (Bernard Duncan, pro se, on briefs).

           (Mark L. Earley, Attorney General; Lisa J.
           Rowley, Assistant Attorney General, on
           brief), for appellee Virginia Employment
           Commission.

           No brief for appellee Data Services America.


     Bernard Duncan contends that the Circuit Court of Mecklenburg

County (circuit court) erred in affirming a decision of the

Virginia Employment Commission (Commission) that disqualified him

from receiving unemployment compensation benefits effective

January 3, 1999.   The Commission (1) found that Data Services

America (employer) discharged Duncan for misconduct connected with

work under Code § 60.2-618(2)(a); and (2) denied Duncan's request

to present additional evidence and testimony pursuant to 16 VAC

5-80-30(B) of the Rules and General Rules Affecting Unemployment


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Compensation.     Duncan further contends that the Commission's

decisions were procured by fraud and deceit; that he was denied

due process of law; and that the Commission's decisions were based

upon an incomplete record. 1   Upon reviewing the record and the

briefs of the parties, we conclude that this appeal is without

merit.   Accordingly, we summarily affirm the circuit court's

decision.   See Rule 5A:27.

             I.    Sufficiency of Evidence of Misconduct

     "[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. 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).



     1
       Duncan's opening brief contains a great deal of argument
and numerous issues presented for consideration, many of which
concern matters that are not relevant or proper for
consideration by this Court on appeal. Accordingly, we have
narrowed the issues which we will consider on appeal to those
considered by the Commission and the circuit court. In
addition, in rendering our decision we considered only that
evidence which is in the record and was properly before the
Commission when it rendered its decision.


                                 - 2 -
     So viewed, the evidence established that Duncan began working

for employer as a data entry trainee on June 23, 1998.      Employer

is a data entry service bureau, which processes a large quantity

of Medicaid claims.   A data entry trainee must meet certain speed

and accuracy standards over a specific period of time before being

promoted to a full-fledged operator position.      Once employees

reach operator status they receive incentive pay based upon their

keystrokes.   Normally, employer allowed a trainee six weeks to

attempt to attain operator status.       However, employer allowed

Duncan to remain in trainee status longer than usual, because it

hoped he would eventually be able to meet the speed and accuracy

requirements.   Ultimately, employer terminated Duncan from his

employment on January 7, 1999.

     In a December 8, 1998 letter to Jean Hofheimer, employer's

president, Duncan expressed his dissatisfaction with his pay, his

belief that he was being treated unfairly and not being permitted

to use the computer equipment with which he felt most comfortable,

his belief that when he discussed personal business with his

supervisors they divulged it to others, not receiving telephone

calls when others had been permitted to do so, and his belief that

he was being harassed and discriminated against on the basis of

his race.

     As a result of the December 8, 1998 letter, Hofheimer and her

son, employer's vice-president and regional manager, met with


                                 - 3 -
Duncan on December 14, 1998.    They explained issues of pay and

tried to resolve Duncan's concerns regarding discrimination and

harassment.   Duncan did not seem to agree with what he was told,

but he did not object either.

     Duncan did not mention these matters again until January 4,

1999, when he sent employer another letter.   In that letter,

Duncan raised some of the same issues he had raised in the

December 8, 1998 letter, concerning his pay, the type of computer

he was working on, and promotion to operator status.   Duncan's

January 4, 1999 letter also contained the following language:

          I am going to tell you what my intentions
          are. First of all, I am going to my friend
          in Richmond, who works for the IRS. Then, I
          am going to the EEOC and the Labor Board,
          and the Better Business Bureau. And, if you
          don't restitute me, I will see you in civil
          court. I am not playing one bit.

          You are using people in this "shop". How
          many have you used is the question? This is
          tantamount to fraud, tax evasion, grand
          larceny for the money you have pilfered from
          workers like me and whatever other
          violations. I want mine with interest. You
          don't care about me because, if you did, I
          wouldn't be going through this now. I am
          speaking for Bernard Duncan only, but if you
          don't do the right thing, it will include
          any and everybody whoever worked there. I
          want my money and I mean it.

     Hofheimer perceived Duncan's January 4, 1999 letter as

extremely threatening.   As a result, on January 7, 1999, Hofheimer

sent Duncan a letter terminating his employment.   Hofheimer




                                - 4 -
testified that the sole reason for Duncan's termination was the

tone of his January 4, 1999 letter.

     In Hofheimer's January 7, 1999 letter, she informed Duncan as

follows:

           I can only conclude that you and DSA will
           never arrive at a solution to your perceived
           problems. You have been provided training
           and opportunity just as all other employees
           of the company. I realize that you do not
           see it that way, but believe me, the company
           has no desire to keep keyers from making
           operator status.

Hofheimer also wrote:

           I do not understand how you arrived at some
           of your conclusions and accusations, but as
           noted above, after trying to reason with
           you, I feel that further attempts to resolve
           your issues would be futile. Given the tone
           of your letter, your further employment
           would be disruptive to DSA's operation.

     Hofheimer testified that she believed, based upon Duncan's

January 4, 1999 letter, that he was accusing employer of "running

a racket," of trying to prevent Duncan from obtaining operator

status, of discrimination, and of several felony offenses,

including grand larceny and tax evasion.   She stated that employer

had tried to resolve Duncan's concerns in the December 14, 1998

meeting, but to no avail.   She was also concerned, based upon the

contents of the letter, that Duncan would involve other employees

with his problems, causing disruption of employer's business.

     Employer's "General Rules and Policies," which Duncan was

aware of, prohibited employees from "[c]reating an oral or written

                               - 5 -
statement defaming, ridiculing, degrading, or otherwise

discrediting the company . . . ."   The policy also prohibited

employees from "[t]hreatening, intimidating, coercing, harassing

and insulting another employee at any time" or from committing

"[b]ehavior that is disruptive to the work of others."    The policy

made it clear to the employee that engaging in such conduct could

be grounds for termination from employment.

            [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.

Branch v. Virginia Employment Comm'n, 219 Va. 609, 611, 249 S.E.2d

180, 182 (1978).   "Whether an employee's behavior constitutes

misconduct . . . 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.

       When viewed in a light most favorable to the Commission and

employer, the record establishes that the threatening and

accusatory tone of Duncan's January 4, 1999 letter, which

contained very serious and at that time, unsubstantiated and

defamatory allegations against employer, demonstrated a deliberate

and willful disregard of Duncan's duties and obligations to

employer which were designed to protect its legitimate business

                                - 6 -
interests.    Accordingly, Duncan's actions constituted misconduct

connected with work.

     "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).   Whether a claimant's evidence sufficiently

mitigates his behavior so as to avoid disqualification for

benefits is a question of fact for the Commission.   See Britt v.

Virginia Employment Comm'n, 14 Va. App. 982, 986, 420 S.E.2d 522,

525 (1992).

     The Commission was not persuaded by Duncan's evidence of

mitigating circumstances.    The record supports the Commission's

finding that employer discharged Duncan for misconduct connected

with work and that Duncan failed to present sufficient evidence in

mitigation.   Accordingly, the Commission did not err in

disqualifying him from receiving unemployment benefits.

                       II.   Additional Evidence

     Duncan made a motion before the Commission during the appeals

process requesting that it consider additional documentary

evidence and witness testimony.    Specifically, Duncan requested

that the Commission consider employer's written policy pertaining

to "operator status" and "excused and unexcused absences,"


                                 - 7 -
Duncan's complete file, including his employment application and

W-4 forms, computerized results from pre-employment typing tests

taken by Duncan, and documentation as to how employer calculated

the rate of pay for employees who worked on North Carolina claims

and for employees who worked on Virginia claims.   In addition,

Duncan requested that several co-workers be called to testify

regarding hiring procedures, production, and pay issues.

     The Commission denied Duncan's request, finding that he had

not satisfied the criteria contained in 16 VAC 5-80-30(B) for the

receipt of additional evidence.    Specifically, the Commission

found that the additional evidence was not material to the

substantive issues in the case, or if received, would not have

been likely to produce a different result, and the record prepared

by the Appeals Examiner was sufficient to enable the Commission to

make proper, accurate, and complete findings of fact and

conclusions of law.

     The Commission's findings and conclusions are fully supported

by the record.   Regardless of whether the commission ruled on the

admissibility of the evidence in question during the initial

stages of the proceedings or during the appeals process, we find

that the Commission did not abuse its discretion in refusing to

consider the evidence.   The additional evidence was not material,

relevant, or necessary to the Commission's decision on the

substantive issues in this case.   Moreover, even if received, the


                               - 8 -
additional evidence would not have likely produced a different

result.      Accordingly, the commission did not err in refusing to

consider it.

                 III.   Fraud/Due Process/Incomplete Record

       We find no basis in fact or law for Duncan's unsubstantiated

allegations that the decisions of the circuit court or the

Commission's Deputy, Appeals Examiner, or Special Appeals Examiner

were somehow procured by fraud or deceit, or that the circuit

court's or the Commission's employees and judges were somehow

biased against Duncan or predisposed to rule in favor of employer.

In addition, we find no merit in his argument that "the file [or

record] is 'incomplete'" or that he was denied due process of the

law.       On the contrary, Duncan and employer were afforded a

reasonable opportunity for a full and fair evidentiary hearing on

his claim for unemployment benefits pursuant to the procedures

established by statutes and regulations.

       For these reasons, the judgment of the circuit court is

affirmed. 2

                                                              Affirmed.




       2
       We deny the Commission's motion to dismiss Duncan's
appeal.

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