                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Bray
Argued at Norfolk, Virginia


DEBORAH A. WOOD

v.        Record No. 0814-94-1                OPINION BY
                                      JUDGE JERE M. H. WILLIS, JR.
VIRGINIA EMPLOYMENT COMMISSION               JUNE 20, 1995
and
AMERICOMM DIRECT MARKETING, INC.


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
               Morris B. Gutterman, Judge Designate

          Gilman P. Roberts, Jr. (Tidewater Legal Aid
          Society, on briefs), for appellant.

          Julia D. Tye, Assistant Attorney General
          (James S. Gilmore, III, Attorney General;
          Lisa J. Rowley, Assistant Attorney General,
          on brief), for appellee Virginia Employment
          Commission.

          No brief or argument for appellee Americomm
          Direct Marketing, Inc.


     Deborah A. Wood was discharged from employment by Americomm

Direct Marketing, Inc. on September 16, 1993.    She filed for

unemployment compensation benefits.   Her claim was processed by

the Virginia Employment Commission pursuant to Code Title 60.2,

Chapter 6, Article 5 (Code §§ 60.2-619, et. seq.).    Upon review,

the Commission, acting through a special examiner pursuant to

Code § 60.2-622(C), denied benefits on the ground that Ms. Wood's

discharge resulted from her misconduct and that she was barred

from receiving benefits by Code § 60.2-618(2).   On judicial

review pursuant to Code § 60.2-625, the trial court affirmed the

Commission's determination.
     On appeal, Ms. Wood contends that the trial court erred in

denying her unemployment compensation benefits and in failing to

follow the precedent of Kennedy's Piggly Wiggly Store, Inc. v.

Cooper, 14 Va. App. 701, 419 S.E.2d 278 (1992).       We find no error

and affirm the judgment of the trial court.

     The issue before us is whether Ms. Wood's discharge resulted

from misconduct disqualifying her for benefits.       Code § 60.2-618

provides, in pertinent 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:
                 *    *    *    *      *   *      *

     2. . . . [I]f the Commission finds such individual is
     unemployed because he has been discharged for
     misconduct connected with his work.


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

180 (1978), the Supreme Court defined misconduct within the

contemplation of Code § 60.2-618(2) as follows:
     [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. Absent
     circumstances in mitigation of such conduct, the
     employee is "disqualified for benefits," and the burden
     of proving mitigating circumstances rests upon the
     employee.


Id. at 611-12, 249 S.E.2d at 182 (citations omitted).

     Our standard of review is found in Code § 60.2-625(A), which

provides, in pertinent part:


                               - 2 -
     In any judicial proceedings under this chapter, 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.


We "must consider the evidence in the light most favorable to the

finding of the Commission."   Virginia Employment Comm'n v.

Peninsula Emergency Physicians, Inc., 4 Va. App. 621, 626, 359

S.E.2d 552, 554-55 (1987).

     On the day of her discharge, Ms. Wood refused to perform a

task requested of her by a supervisor.   She was taken to the

office of Brad G. Stewart, a company vice president, to discuss

her insubordination. Mr. Stewart testified:
     [W]e were still talking about that incident, and . . .
     she . . . , while we were discussing this, . . . she
     became very upset and . . . said she was just tired of
     this - of this place and . . . she went right down the
     line, said she was tired of everybody . . . and she
     hoped somebody would get - get rid of her so she could
     get out of here . . . .


Mr. Stewart elaborated:
     And . . . when she told me she was tired of this
     f---ing place and she - she's tired of f---ing David
     Craig, and she's tired of myself, she's tired of that
     fat Don Horace, and that, you know, she just wants out
     and . . . I said, fine, well she went storming out of
     the office and . . . that was it. And I went to
     personnel and started the paper work.


In earlier performance evaluations, Ms. Wood had been cautioned

about her attitude and her use of abusive language.

     The Commission's appeals examiner found:
     The employer presented evidence to show that the
     claimant's actions on her last day at work were
     disruptive to the work place. Furthermore, the
     claimant's choice of words were (sic) disrespectful and
     the claimant knew or should have known that speaking to


                               - 3 -
     the vice president in such a manner could lead to
     discharge. Therefore, the Appeals Examiner must find
     that the claimant was discharged for misconduct
     connected with her work.


Affirming the foregoing holding, the Commission's special

examiner further found:
     When she stated that she was tired of working in "this
     place" and wished someone would get rid of her, she
     was, in effect, challenging the vice president's
     authority to terminate her. The Commission is unable
     to conclude that she was provoked into saying what she
     did or using profanity. Accordingly, she has not
     established mitigating circumstances for the conduct
     which brought about her termination and she should be
     disqualified under [Code § 60.2-618(2)].

     Ms. Wood relies on our decision in Kennedy's Piggly Wiggly

Stores, Inc. v. Cooper, 14 Va. App. 701, 419 S.E.2d 278 (1992).

In Piggly Wiggly, the employee, who had been injured and

disabled, was in a manager's office, discussing with company

officials his ability to return to work.   The discussion turned

to the subject of unionization and became heated.   Addressing the

corporate CEO, whom he did not know, the employee said, "Well I

don't know who you are or where you come from but you're full of

s---."   He was discharged for insubordination.   Noting that the

offensive remark was made under heated circumstances and that no

evidence disclosed that the employee had a record of misconduct

or that the remark was overheard by store employees or customers,

we upheld the trial court's ruling that the remark was

insufficient to constitute misconduct under Code § 60.2-618(2).

We announced that decision with the following caveat:
     In reaching this decision, we do not hold, as employer
     suggests, that an employee will be entitled to curse or



                               - 4 -
     verbally revile his employer at least once and still be
     entitled to unemployment benefits. We merely hold that
     the facts of this case do not support a finding of
     willful misconduct so as to result in a forfeiture of
     unemployment compensation. Indeed, a single, isolated
     instance of vulgar or offensive language addressed to a
     superior may, in certain instances, amount to willful
     misconduct.


Id. at 708, 419 S.E.2d at 282 (emphasis in original).

     The holding in Piggly Wiggly does not control this case.

Ms. Woods' vulgarity and insubordination was not an isolated

incident.   She had been cautioned before.   It was not simply a

mode of expression under circumstances of provocation.     It was

deliberately offensive and was calculated to challenge the

organizational authority of the company and to repudiate her duty

to her employer and her superiors.
     The evidence supports the Commission's holding.     The trial

court did not err in affirming that holding.

     The judgment of the trial court is affirmed.

                                               Affirmed.




                               - 5 -
BENTON, J., dissenting.



        Although this case is factually similar to Kennedy's Piggly

Wiggly Stores, Inc. v. Cooper, 14 Va. App. 701, 419 S.E.2d 278

(1992), the Commission failed to apply Cooper's holding to this

case.    Indeed, the parallels between this case and Cooper suggest

that the Commission simply ignored Cooper.     The record reveals

that following an evidentiary hearing, the appeals examiner who

heard the evidence ruled in favor of Deborah Wood and found as

follows:
             [Wood] now has the burden of proving that
             there were mitigating circumstances. First,
             [Wood] presented evidence to show that both
             the Accounts Manager and the vice president
             also used profanity in speaking to her during
             their discussions and arguments. Secondly,
             [Wood] presented evidence to show that she
             had never received any progressive discipline
             per company policy. Third, the evidence
             establishes that [Wood] was discharged as a
             result of an isolated incident. The Appeals
             Examiner is convinced that all parties were
             upset during their discussions and arguments.
              Taking all of this into consideration, the
             Appeals Examiner finds that mitigating
             circumstances exist. Therefore, [Wood] will
             not be subject to the disqualifying
             provisions of the Act.

        The special examiner reversed the ruling without any

reference to Cooper.     That special examiner is the same special

examiner whose decision we reversed in Cooper.     Because the

Commission failed to apply the applicable precedent and because

the employer failed to carry the burden of proving that Wood's

remarks constituted misconduct under Code § 60.2-618(2), I would




                                 - 6 -
reverse the Commission's decision.     Therefore, I dissent.

     The Supreme Court of Virginia has defined misconduct as

proscribed by Code § 60.2-618, to be as follows:
          [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) (citations omitted).    This is not a case

in which Wood violated a company rule.    Thus, our analysis in

this case is confined to whether Wood's remarks were of "such a

nature . . . as to manifest a willful disregard of [the

employer's business] interests and [Wood's] duties and

obligations . . . [to the] employer."     See Cooper, 14 Va. App. at

705, 419 S.E.2d at 281.

     Wood was employed by Americomm as a mail office coordinator

for approximately four and one-half years before she was

discharged.   She was working on a project assigned by her

supervisor when a supervisor from another department asked her to

complete something for him immediately.    Wood first wanted to

complete the job she was doing.    The two argued "and curse words

were exchanged by both parties."   The next day, Wood discussed

this incident with Brad Stewart, Vice President of Operations.

Stewart testified that "as the discussion went on, it got more



                               - 7 -
heated."   Stewart found Wood's use of the word, "fuck," to be

abusive.   He testified that Wood did not say anything else that

he found to be abusive.    He also testified that there was no

reason for her discharge other than her abusive language during

the discussion.   Wood testified that both of them had used

profanity.   The examiner who heard the evidence found that

Stewart and Wood used "curse words."

     In Cooper, this Court stated that "[a] finding of willful

misconduct . . . depends upon the particular circumstances of the

case."   14 Va. App. at 706, 419 S.E.2d at 281.   This would

"include the severity of the language used; the quantity of the

language used, i.e., whether it was a lengthy barrage or a brief
incident; whether the language was spoken in the presence of

customers, clients or other employees; whether the employee had a

record of misconduct; . . . and whether the language was provoked

by the employer."    Id.

     The record reflects that Wood's discussion with Stewart got

progressively more heated.   However, no evidence proved that she

initiated the use of profanity.   The hearing examiner found that

both Wood and Stewart used "curse words."

     Wood's remarks were confined to Stewart's office and were

made in his presence only; no evidence proved that her remarks

were overheard by any customers or employees.     See id. at 707,

249 S.E.2d at 282.   The employer neither alleged nor proved that

Wood's remarks interfered with the business or were "calculated



                                - 8 -
to challenge the organizational authority of the company."

     Although the majority places great weight upon Wood being

"cautioned before," Stewart testified that the performance

reviews in which Wood's attitude was addressed were not "actual

warning[s]" but were "part of an evaluation to help her improve

her abilities."   In fact, the employer follows a "progressive

discipline" procedure, using verbal and written warnings prior to

terminations.    Stewart testified that Wood had not received any

such warnings.
     As we stated in Cooper, "[t]he issue in this case is not the

right of the employer to discharge an employee.   Rather, the

issue is the employee's right, upon discharge, to receive

unemployment benefits."   14 Va. at 708, 419 S.E.2d at 282.

Because the employer failed to prove that Wood's remarks to

Stewart constituted a willful disregard of the employer's

business interests sufficient to deny her unemployment benefits,

I would reverse the trial judge's decision.




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