                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Beales and Chafin
UNPUBLISHED


              Argued at Richmond, Virginia


              CAROL CENNAME
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 0934-13-2                                      JUDGE TERESA M. CHAFIN
                                                                                  FEBRUARY 11, 2014
              VIRGINIA EMPLOYMENT COMMISSION AND
               PARALLON EMPLOYER LLC


                                FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                              F.G. Rockwell, III, Judge

                               Scott A. Simmons (MeyerGoergen, PC, on briefs), for appellant.

                               Elizabeth B. Peay, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee Virginia
                               Employment Commission.

                               No brief or argument for appellee Parallon Employer LLC.


                     Carol Cenname (“Cenname”) filed an administrative claim for unemployment benefits

              with the Virginia Employment Commission (“VEC”). The VEC denied the claim, and the circuit

              court, upon Cenname’s appeal, affirmed the denial. Reviewing the facts under a deferential

              standard and the law de novo, we affirm the circuit court’s holding.

                                                        BACKGROUND

                     “Like the circuit court, we must ‘consider the evidence in the light most favorable to the

              finding by the Commission.’” Smith v. Va. Emp’t Comm’n and Swift Transp. Co., 59 Va. App.

              516, 519, 721 S.E.2d 18, 20 (2012) (quoting Va. Emp’t Comm’n v. Trent, 55 Va. App. 560, 565,

              687 S.E.2d 99, 101 (2010)).



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       So viewed, the evidence before the VEC proved that Cenname was employed as an

accounting manager by Parallon, LLC (“Parallon”) from August 1, 2011 through February 17,

2012. On November 30, 2011, Cenname became the subject of a “performance improvement

plan” (PIP). The PIP was renewed on several occasions, including on February 2, 2012, when

she was given 30 days to attain the performance goals expected by Parallon. On February 13,

2012, Cenname wrote a response to the February 2, 2012 improvement plan, which resulted in

the plan being revised on February 14, 2012. She was given a new 30-day period and had until

March 15, 2012 to improve her performance.

       On February 17, 2012, Cenname met with a Parallon representative and advised that she

would not be able to fulfill the requirements of the PIP by March 15 and did not wish to

complete the full 30-day period. Cenname told the Parallon representative to accelerate her PIP

and to choose a day to terminate her. Parallon selected that same day, Februrary 17, 2012, as the

date of Cenname’s termination. Parallon made it clear to Cenname that she had the full 30 days

to make the improvements outlined in the PIP and did not have to accelerate the time.1

       Cenname filed for unemployment benefits with the VEC. Citing Code § 60.2-618(1), the

claims deputy found that Cenname was disqualified from receiving benefits effective February

12, 2012 based on a finding that she left work voluntarily without good cause.2 She filed an

appeal from this determination. After a full hearing on March 28, 2012, the appeals examiner

affirmed the deputy’s decision, and found that the termination was instituted at Cenname’s

request, that she had 30 days to improve her performance, that she chose to forego that

opportunity, and, while she may have believed she would be terminated at the end of the 30-day

       1
       Had Cenname not requested that her PIP be accelerated, she would have had until
March 15, 2012, to attempt to meet the employer’s expectations.
       2
          Although Cenname’s official termination date was February 17, 2012, the record
reflects that February 12, 2012 is the date on which Cenname became disqualified from
receiving benefits.
                                                -2-
period, there was no certainty she would be terminated. Cenname thereafter filed a timely appeal

of the appeals examiner’s findings to the VEC. Cenname appealed the VEC’s decision to the

circuit court and, upon meeting with no success there, now appeals to this Court.

                                           ANALYSIS

       In all “judicial proceedings” involving VEC appeals, “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.” Code § 60.2-625(A). “A

decision by the VEC that conjoins both factual and legal issues presents a ‘mixed question’ on

review.” Smith, 59 Va. App. at 520, 721 S.E.2d at 20 (citing Snyder v. Va. Emp’t Comm’n, 23

Va. App. 484, 491, 477 S.E.2d 785, 788 (1996)).

               In such cases, we segregate (to the extent we can) the law from the
               facts – reviewing the law de novo and the facts with the deference
               required by Code § 60.2-625(A). We do so, however, mindful of
               the overarching premise that “a reviewing court cannot substitute
               its own judgment for the agency’s on matters committed by statute
               to the agency’s discretion.”

Id. (internal citations omitted). “The VEC’s findings may be rejected only if, in considering the

record as a whole, a reasonable mind would necessarily come to a different conclusion.” Craft v.

Va. Emp’t Comm’n, 8 Va. App. 607, 609, 383 S.E.2d 271, 273 (1989) (emphasis in original).

       On appeal, Cenname argues that the severance of her employment should have been

treated as a discharge or, in the alternative, that she had good cause to leave her employment

because her discharge was imminent.

       Code § 60.2-618(1) provides that an “individual shall be disqualified for [unemployment

compensation] benefits . . . if the Commission finds such individual is unemployed because he

left work voluntarily without good cause.” “Determining whether an employee voluntarily quit

without good cause is a mixed question of law and fact reviewable on appeal.” Snyder, 23



                                                -3-
Va. App. at 491, 477 S.E.2d at 788. See also Shuler v. Va. Emp’t Comm’n, 9 Va. App. 147,

149, 384 S.E.2d 122, 124 (1989).

               “When determining whether good cause existed for a claimant to
               voluntarily leave employment, the commission and the reviewing
               courts must first apply an objective standard to the reasonableness
               of the employment dispute and then to the reasonableness of the
               employee’s efforts to resolve that dispute before leaving the
               employment. In making this two-part analysis, the claimant’s
               claim must be viewed from the standpoint of a reasonable
               employee. . . . Factors that . . . are peculiar to the employee and her
               situation are factors which are appropriately considered as to
               whether good cause existed.”

Snyder, 23 Va. App. at 491, 477 S.E.2d at 788 (quoting Umbarger v. Va. Emp’t Comm’n, 12

Va. App. 431, 435-36, 404 S.E.2d 380, 383 (1991)). “Although [Cenname] bore the burden of

showing that she met the eligibility conditions set forth in the act, it was [Parallon’s] burden to

prove that she was disqualified from benefits.” Shuler, 9 Va. App. at 149-50, 384 S.E.2d at 124

(internal citations omitted).

       “[T]he Commission has consistently held that anticipation of being discharged is not

good cause for leaving a job.” Smith, 59 Va. App. at 519, 721 S.E.2d at 20 (internal quotation

marks omitted).

               As early as the 1950s, the VEC explained its position this way:

                       Cases where an individual leaves his work in anticipation
               of being discharged at some future date are not new to this
               Commission. In such cases the holdings have established the
               principle that an anticipated discharge is not a discharge in fact,
               and if the claimant elects to leave before the discharge actually
               occurs he does so voluntarily. The threat of discharge is
               sometimes used to warn or exhort an employee, but the threat is
               not tantamount to actual discharge.

Id. at 519-20, 721 S.E.2d at 20.

       In this case, Cenname was not given an ultimatum “to resign or be immediately

discharged.” Rather, she was told that if she did not improve her performance within the next 30

                                                -4-
days, she would be discharged. Parallon made it clear to Cenname that she had the full 30 days

to make the improvements outlined in the PIP and did not have to accelerate the time. However,

Cenname did not believe she could meet Parallon’s expectations and asked to be terminated prior

to the end of the 30 days.

       Parallon may have discharged Cenname on March 15, 2012, at the closure of the PIP, had

her performance not improved. Cenname was not guaranteed employment until March 15, as

any employee at will may be fired or quit at any time.3 Nevertheless, because Cenname would

have certainly continued to be employed after February 17, 2012, had she not requested to

accelerate the PIP, the circuit court correctly affirmed the VEC’s ruling that Cenname’s actions

constituted a voluntary leave. Asking for the PIP to be accelerated evinced Cenname’s intent to

sever the employment relationship. See Shuler, 9 Va. App. at 150, 384 S.E.2d at 124 (“An

employee’s intention to quit may be discerned from words or conduct inconsistent with the

maintenance of an employer/employee relationship.”). “Neither the VEC nor the courts should

be asked to speculate when, if ever, the employee’s prediction might have come to pass or

whether the hypothesized firing might have implicated a disqualification for misconduct under




       3
                       Virginia strongly adheres to the employment-at-will
               doctrine, that when the intended duration of a contract for the
               rendition of services cannot be determined by fair inference from
               the terms of the contract, then either party is ordinarily at liberty to
               terminate the contract at will, upon giving the other party
               reasonable notice.

VanBuren v. Grubb, 284 Va. 584, 589, 733 S.E.2d 919, 921 (2012) (internal quotation marks and
citations omitted). The employment at-will doctrine is subject to limited exceptions. However,
none of these exceptions apply to Cenname’s situation. See e.g., VanBuren, 284 Va. 584, 733
S.E.2d 919 (public policy); Mitchem v. Counts, 259 Va. 179, 523 S.E.2d 246 (2000) (sexual
harassment); Bailey v. Scott-Gallagher, Inc., 253 Va. 121, 480 S.E.2d 502 (1997) (mother fired
for having a baby); Bradick v. Grumman Data Sys. Corp., 254 Va. 156, 486 S.E.2d 545 (1997)
(disability); Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va. 98, 429 S.E.2d 328 (1994)
(race and gender).
                                               -5-
Code § 60.2-618(2)(b).” Smith, 59 Va. App. at 521, 721 S.E.2d at 21. See, e.g., Va. Emp’t

Comm’n v. Cmtv. Alts., Inc., 57 Va. App. 700, 704, 705 S.E.2d 530, 532-33 (2011).

       Because Cenname voluntarily left her job without good cause, the circuit court correctly

affirmed the VEC’s order disqualifying Cenname from receiving unemployment benefits.

                                                                                      Affirmed.




                                              -6-
