                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, O’Brien and Senior Judge Clements
UNPUBLISHED


              Argued at Alexandria, Virginia


              RONALD L. BORDEN
                                                                                           MEMORANDUM OPINION BY
              v.            Record No. 1406-16-4                                           JUDGE ROSSIE D. ALSTON, JR.
                                                                                                  MAY 9, 2017
              VIRGINIA EMPLOYMENT COMMISSION AND
               FAIRFAX COUNTY



                                                    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                                                 John M. Tran, Judge

                                           Ronald L. Borden, pro se.

                                           Elizabeth B. Peay, Assistant Attorney General (Mark R. Herring,
                                           Attorney General; John W. Daniel, II, Deputy Attorney General;
                                           Kristina Perry Alexander, Senior Assistant Attorney General &
                                           Section Chief, on brief), for appellee Virginia Employment
                                           Commission.

                                           No brief or argument for appellee Fairfax County.


                            Ronald L. Borden (Borden) appeals an order from the Circuit Court of Fairfax County

              denying him unemployment benefits because the trial court found that he voluntarily quit his job

              without cause. On appeal, Borden contends that the trial court erred when it determined that he

              was not entitled to receive unemployment benefits because he was actually discharged from

              work for misconduct. We disagree.

                                                                              BACKGROUND

                            Borden was employed by the Department of Public Works for Fairfax County from

              September 15, 2008, to June 12, 2015. Throughout his employment, Borden received several

                                                                          
                            
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
warnings about unprofessional behavior directed towards supervisors and co-workers. The oral

warnings Borden received ultimately included counseling regarding a loud altercation with a

co-worker around August 21, 2012; counseling on disruptive behavior that occurred around

January 17, 2013; and counseling around May 24, 2013, regarding an inappropriate comment in

the hiring process and disrespectful behavior towards his supervisor. Borden’s written

reprimands included one dated October 16, 2013, for unprofessional behavior and conduct; a

one-day suspension without pay on November 8, 2013, for failure to comply with regulations of

personal behavior and conduct; and another written reprimand for unprofessional behavior on

December 12, 2014. Borden did not file a grievance for any of these warnings. Under the

governing policy, a grievance allows an employee to ask for a review of a reprimand by his

employer.

       Borden did however, file a grievance regarding a July 23, 2013 written reprimand for

unprofessional behavior and conduct. The written warning was ultimately upheld by the trial

court in 2014.

       On November 18, 2014, Borden filed an incident report against a supervisor, Bryan

Polick, who talked to Borden about changing the data on a project. When Borden refused,

Polick shut the door to the lab where Borden worked, slammed his hand down on the counter,

and told Borden he should do as he was told. Risk management investigated the incident and

handled it through the disciplinary process, and ultimately Polick maintained his supervisory

capacity over the lab.

       In May 2015, Borden learned that another employee, Sam Farag, complained to a

supervisor about the way Borden talked to him. Borden’s employer initiated an investigation

into the employee’s complaints, and talked to Borden about the allegations. Borden confronted

the employee about filing a complaint, yelling at him and following him throughout their office.

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As a result of this behavior, Borden’s employer issued him a notice of proposed five-day

suspension on June 11, 2015. However, this suspension without pay was never imposed.

              Borden resigned from his position on June 12, 2015. Borden stated, at a hearing before

the Virginia Employment Commission: “I had been contemplating [leaving] for some time. I

made my supervisor aware of it.” Borden also stated that he believed his employer’s decision to

propose a five-day suspension on June 11, 2015, was in retaliation for Borden’s previous

complaints.

              The Virginia Employment Commission issued a decision on February 17, 2016, holding

that Borden was disqualified from receiving unemployment compensation benefits effective June

28, 2015, due to voluntarily quitting work without good cause. On July 29, 2016, the trial court

entered an order affirming the Virginia Employment Commission’s decision. This appeal

followed.

                                                               ANALYSIS1

              Borden essentially argues that the trial court erred when it affirmed the Commission’s

decision finding that Borden was not due unemployment compensation because he voluntarily

quit his job without good cause. We disagree.

              Determining whether an employee voluntarily quit without good cause is a mixed

question of law and fact reviewable on appeal. Snyder v. Virginia Empl. Comm’n, 23 Va. App.

484, 490, 477 S.E.2d 785, 788 (1996). Code § 60.2-625(A) states that: “the findings of the

Commission as to the facts, if supported by evidence and in the absence of fraud, shall be


                                                            
              1
          While this opinion focuses predominantly on Borden’s assignment of error, Borden’s
filing with this Court was replete with procedural rule violations. Specifically, Borden’s opening
brief violated Rule 5A:20 in several ways: (1) it did not include an exact reference to the page(s)
of the transcript, written statement, record, or appendix where each assignment of error was
preserved in the trial court; (2) it did not include a clear and concise statement of the facts
relating to his assignment of error; and (3) it did not provide a standard of review.

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conclusive, and the jurisdiction of the court shall be confined to questions of law.” When “the

General Assembly has acquiesced in the [C]ommission’s construction of the statute, such

construction is entitled to great weight with the courts.” Shuler v. Virginia Empl. Comm’n, 9

Va. App. 147, 150, 384 S.E.2d 122, 124 (1989) (quoting Branch v. Virginia Empl. Comm’n, 219

Va. 609, 612, 249 S.E.2d 180, 183 (1978)).

       Code § 60.2-618(1) provides that an individual is disqualified from benefits upon leaving

his employment “if the Commission finds such individual is unemployed because he left work

voluntarily without good cause.” This Court has established that the employer bears the burden

of proving that the claimant left work voluntarily, and is thus disqualified from benefits. Shuler,

9 Va. App. at 150, 384 S.E.2d at 124. The term voluntary means “[u]nconstrained by

interference; unimpelled by another’s influence; spontaneous; acting of oneself . . . [r]esulting

from free choice.” Id. at 150-51, 384 S.E.2d at 124 (quoting Barnes v. Singer Co., 376 S.E.2d

756, 758 (N.C. 1989)).

       It is clear that based on Borden’s testimony, he voluntarily resigned on June 12, 2015.

He specifically stated: “I’d been contemplating [leaving] for some time. I made my supervisor

aware of it. I also made the manager aware on several occasions that, you know, I wasn’t happy

with what was going on.” Borden admitted that he had been thinking about leaving, and even

talked to his superiors about doing so. Thus, Borden voluntarily resigned from his position with

the Department of Public Works.

       Once Borden’s employer established that Borden resigned voluntarily, the burden shifted

to Borden to prove that he left his employment for good cause. Actuarial Benefits & Design

Corp. v. Virginia Empl. Comm’n, 23 Va. App. 640, 645, 478 S.E.2d 735, 738 (1996). This

Court has established a two-part test for determining whether good cause existed for a claimant

to voluntarily leave their employment: (1) apply an objective standard to the reasonableness of

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the employment dispute; and (2) determine the reasonableness of the employee’s efforts to

resolve that dispute before leaving the employment. Snyder, 23 Va. App. at 491, 477 S.E.2d at

788. In analyzing these elements, Borden’s claim must be viewed from the standpoint of a

reasonable employee. Id.

       The first part of the test involves examining “[f]actors that . . . are peculiar to the

employee and [his] situation.” Johnson v. Virginia Empl. Comm’n, 8 Va. App. 441, 451, 382

S.E.2d 476, 481 (1989). In this case, Borden’s disputes arose from issues with other employees.

These issues included complaints by Borden about how he was assaulted by his supervisor,

Polick. They also included other employees’ complaints against Borden, relating to Borden’s

threats directed at his co-worker who then complained about Borden to their supervisor. Borden

also claimed that his employer was trying to fire him; however, Borden’s superiors stated that

Borden received several warnings at work about his behavior, but they did not mention wanting

to fire him. In fact, Borden’s supervisors gave him numerous chances to change his

unprofessional behavior throughout his several years of employment with the Department of

Public Works.

       In consideration of the second prong of the Snyder test, Borden did not reasonably try to

resolve his dispute with his employer before he resigned. In Umber v. Virginia Employment

Commission, 12 Va. App. 431, 437, 404 S.E.2d 380, 384 (1991), this Court found that the

appellant had exhausted all reasonable alternatives within her company to resolve her complaint

of discrimination when she confronted a superior and he failed to respond. This included using

the established, designated procedure for addressing employee grievances. Id. In this case,

Borden claimed that his hostile work environment caused him to resign. Borden testified about

issues at work, but most of the hostility came from issues with other employees, who also filed




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complaints against him. When Borden did complain about issues such as his supervisor, Polick,

allegedly assaulting him at work, Borden’s employers conducted thorough investigations.

       Borden resigned right after receiving a notice of a proposed five-day suspension without

pay. Borden did not attempt to use the avenues available to him to fight the proposed

suspension; instead Borden testified that he felt like management was preparing to fire him.

Borden did not provide any evidence to support his claim. Borden also argued that the warning

of a five-day suspension was some sort of retaliation for his past complaints. However, Borden’s

employer presented evidence establishing that Borden received the warning for unprofessional

behavior. Borden had received similar warnings in the past, in fact, he received a one-day

suspension without pay for failure to comply with the regulations of personal behavior/conduct

on November 8, 2013. As such, no good cause existed for a claimant to voluntarily leave

employment.

       The Commission’s decision that Borden was not due unemployment compensation

because he voluntarily quit his job without good cause was supported by the evidence. Thus, the

trial court’s decision upholding the Commission’s determination is affirmed.

                                                                                        Affirmed.




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