                               COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Petty and Senior Judge Bumgardner


BEN K. GAVIE
                                                                MEMORANDUM OPINION *
v.     Record No. 0246-09-4                                         PER CURIAM
                                                                    JULY 7, 2009
VIRGINIA EMPLOYMENT COMMISSION AND
 AGC FIELD OPERATIONS, LLC


                 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                               Mary Grace O’Brien, Judge

                 (Ben K. Gavie, pro se, on brief).

                 (William C. Mims, Attorney General; Elizabeth B. Peay, Assistant
                 Attorney General, on brief), for appellee Virginia Employment
                 Commission.

                 No brief for appellee AGC Field Operations, LLC.


       Ben K. Gavie appeals the October 15, 2008 decision by the circuit court affirming a decision

by the Virginia Employment Commission (commission) disqualifying him for unemployment

compensation due to misconduct. 1 We have reviewed the record and the commission’s opinion and

find that this appeal is without merit. Accordingly, we affirm for the reasons stated by the

commission in its final opinion. See Gavie v. AGC Field Operations LLC, Commission Decision


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         The record supports the appeals examiner’s decision that the employer’s witnesses were
more credible than Gavie. 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 appeals examiner’s decision that Gavie violated the employer’s harassment policy
by making inappropriate comments about a co-worker’s disability. Branch v. Virginia
Employment Comm’n, 219 Va. 609, 611, 249 S.E.2d 180, 182 (1978). The record supports the
commission’s finding that Gavie failed to show that the evidence could not be presented at the
appeals examiner’s hearing through the exercise of due diligence. Code § 60.2-622(A); 16 VAC
5-80-30(B).
74665-C (July 21, 2006). We dispense with oral argument and summarily affirm because the facts

and legal contentions are adequately presented in the materials before this Court and argument

would not aid the decisional process. See Code § 17.1-403; Rule 5A:27.

                                                                                         Affirmed.




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