                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Felton, Judges Petty and McCullough
UNPUBLISHED


              Argued at Alexandria, Virginia


              KATHLEEN C. HAMPTON
                                                                          MEMORANDUM OPINION* BY
              v.     Record No. 1163-13-4                              CHIEF JUDGE WALTER S. FELTON, JR.
                                                                               FEBRUARY 25, 2014
              VIRGINIA EMPLOYMENT COMMISSION
               AND PUBLIC UTILITIES REPORTS, INC.


                                    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                                Randy I. Bellows, Judge

                               Jonathan A. Nelson (Day & Johns, PLLC, on briefs), for appellant.

                               Joshua E. Laws, Assistant Attorney General (Kenneth T. Cuccinelli,
                               II, Attorney General, on brief), for appellee Virginia Employment
                               Commission.

                               No brief or argument for appellee Public Utilities Reports, Inc.


                     Kathleen C. Hampton (“claimant”) appeals the judgment of the Fairfax County Circuit

              Court (“circuit court”), affirming the decision of the Virginia Employment Commission (“the

              Commission”) that claimant was ineligible to receive unemployment compensation benefits because

              she left work voluntarily without good cause. Claimant asserts that the circuit court erred by

              affirming the Commission’s decision because her employer did not meet its burden to prove that

              claimant left work voluntarily and that the ruling was unsupported by the evidence in the record.

              Claimant also contends the circuit court erred by affirming the Commission’s decision because the

              Commission improperly relied on unsworn statements by claimant’s former employer in

              determining that she was ineligible for benefits.



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         I. BACKGROUND

        We “consider the evidence in the light most favorable to the finding by the Commission.”

Va. Emp’t Comm’n v. Trent, 55 Va. App. 560, 565, 687 S.E.2d 99, 101 (2010) (citation omitted).

The evidence showed that, from February 11, 2008 to April 18, 2012, claimant worked as a

full-time technical legal editor for Public Utilities Reports, Inc. (“employer”). Phillip Cross

(“Cross”) was claimant’s direct supervisor. Cross worked for employer in his capacity as vice

president and human resources officer. Claimant often disagreed with her supervisor regarding

employer’s overtime and paid leave policies.

        On Monday, April 16, 2012, claimant called employer to report that she was sick and that

she would be unable to work. She returned to work the following day. On Wednesday, April 18,

2012, her supervisor told claimant that she needed to complete a paid time off (“PTO”) form for the

day that she had been out of the office. Claimant told her supervisor that she should not have to fill

out a PTO form because she planned to work at least forty hours during the remainder of the week.

Her supervisor explained to claimant that her position was contrary to employer’s policies, and

repeated his direction that she complete a PTO form for the day she was out of the office.1 He told

claimant that she was not required to work more than forty hours per week, that he did not want her

to work more than forty hours per week, and that she would not be compensated for hours worked

above forty hours. He reiterated to claimant that she needed to account for the day she was out of

the office by filling out a PTO form.

        When claimant continued to argue with her supervisor, he told her that she “[had] other

options” if she did not want to complete the PTO form. Claimant asked, “[O]h, like the option to

quit[?]” He did not respond to claimant’s inquiry. Claimant then asked her supervisor, “You just


        1
       Because claimant had already allocated her PTO days for the calendar year, her absence
on Monday, April 16, would ultimately be deemed unpaid leave.

                                                 -2-
don’t want me here anymore, do you?” He replied, “No.” Claimant then told him that “[she]

[would not] stay where [she] [was] not wanted,” and began to pack her belongings. When a

coworker “begged” her to stay, claimant repeated that she would not stay where she was not wanted

and that she would not “put up with [such] bullying.” Claimant left the office and did not return.

       The Commission found

               that the proximate cause of the claimant’s separation from
               employment flowed from her action in challenging the supervisor’s
               instructions over putting in a leave form for her April 16th
               unscheduled absence from work or his refusal to permit her to make
               up her time for that week. This was followed by the claimant’s
               raising the subject of her quitting her job, followed by her initiating
               questioning of the supervisor as to whether he still wanted her there
               or not.

                          *       *       *       *       *       *       *

               In the Commission’s opinion, while the employer does assume the
               burden of non-persuasion as to a voluntary leaving, the claimant’s
               own evidence clearly demonstrates that she voluntarily walked off
               the job that day, rather than being discharged from employment. . . .
               The Commission flatly rejects the contention that the claimant’s
               supervisor “provoked” her into quitting that day, or her arguments to
               the effect that the record fails to evidence a voluntary separation
               from employment.

       The circuit court affirmed the Commission’s decision denying unemployment compensation

benefits to claimant. It found that claimant’s dispute with her supervisor over employer’s leave

policy “was not an objectively reasonable employment dispute.” The circuit court

               agree[d] with the Commission that “while the supervisor may have
               acted unprofessionally in acknowledging that he did not want her
               there,” he did not fire her that day, and the dispute centered on a
               common employment policy: “most employers require employees to
               obtain approval or authorization for overtime before it is worked.”




                                                 -3-
                                           II. ANALYSIS

                                                  A.

        The determination of whether an employee voluntarily quit work without good cause is a

mixed question of law and fact. Snyder v. Va. Emp’t Comm’n, 23 Va. App. 484, 491, 477 S.E.2d

785, 788 (1996). The Commission’s legal determinations are reviewed de novo by this Court.

Smith v. Va. Emp’t Comm’n & Swift Transp. Co., 59 Va. App. 516, 519, 721 S.E.2d 18, 20 (2012).

However, “the Commission’s findings of fact, if supported by the evidence and in the absence of

fraud, are conclusive.” Lee v. Va. Emp’t Comm’n, 1 Va. App. 82, 85, 335 S.E.2d 104, 106 (1985).

Accordingly, “the [Commission’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).

        Code § 60.2-618(1) provides, in pertinent part, that an employee is ineligible to receive

unemployment compensation benefits when the Commission finds that the employee voluntarily

quit work without good cause. The employer bears the burden of proving that the claimant left

work voluntarily. Shuler v. Va. Emp’t Comm’n, 9 Va. App. 147, 150, 384 S.E.2d 122, 124 (1989).

If the employer satisfies its burden of proof that the claimant left work voluntarily, the burden of

proof shifts to the claimant to demonstrate good cause for leaving work. Actuarial Benefits &

Design Corp. v. Va. Emp’t Comm’n, 23 Va. App. 640, 645, 478 S.E.2d 735, 738 (1996).

                The term “voluntary” connotes “‘[u]nconstrained by interference;
                unimpelled by another’s influence; spontaneous; acting of
                oneself . . . [r]esulting from free choice.’” Barnes v. Singer Co.,
                376 S.E.2d 756, 758 (N.C. 1989) (quoting Black’s Law Dictionary
                1413 (5th ed. 1979)). An employee’s intention to quit may be
                discerned from words or conduct inconsistent with the
                maintenance of an employer/employee relationship. See Tate v.
                Briggs & Stratton Corp., 126 N.W.2d 513, 515 (Wis. 1964).

Shuler, 9 Va. App. at 150-51, 384 S.E.2d at 124.



                                                 -4-
                                                (i)

       Here, the record on appeal amply supports the Commission’s finding that claimant

voluntarily left work. On April 18, 2012, claimant argued with her supervisor over employer’s

leave policy, notwithstanding that her supervisor had previously explained the policy to her.

Rather than adhere to employer’s policy that she complete a “paid time off” form to account for

the day she had been absent from the office, claimant suggested that she had the option to quit

work. Spurned by what she perceived as a negative comment from her supervisor, claimant

stated she would not work where she was not wanted, collected her personal belongings from her

cubicle, and left the office. She did not contact employer again until May 7, 2012, to inquire

about unemployment and other benefits. Employer testified that continuing work remained

available for claimant after she left the workplace, and the Commission explicitly rejected

claimant’s contention that employer “provoked” her to quit. The evidence in the record

established that claimant, of her own accord, acted in a manner inconsistent with maintaining a

working relationship with employer. Accordingly, the circuit court did not err by affirming the

Commission’s finding that employer met its burden to prove that claimant left work voluntarily.

                                               (ii)

       To determine whether good cause existed for claimant to voluntarily leave work,

               the commission and the reviewing courts must first apply an
               objective standard to the reasonableness of the 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.

Umbarger v. Va. Emp’t Comm’n, 12 Va. App. 431, 435-36, 404 S.E.2d 380, 383 (1991).

       To constitute “good cause” for quitting work, a claimant must prove that her employer

created workplace conditions so intolerable that she “had no reasonable alternative except to quit

her job.” Id. at 436, 404 S.E.2d at 383.
                                               -5-
       Here, the Commission found that claimant’s dispute with her supervisor over employer’s

leave policy did not constitute “good cause” for leaving work under Code § 60.2-618(1). The

Commission found that employer reasonably required its employees to obtain preauthorization

for overtime work or for taking time off. In addition, applying its longstanding precedent, the

Commission determined that “good cause” under Code § 60.2-618(1) cannot be established by

an employee who quits her job merely because she believes she will eventually be fired. We

agree. Claimant’s dispute with employer arose solely out of her refusal to comply with

employer’s uniformly enforced absence policy. Claimant possessed numerous alternatives to

quitting, including that she complete the PTO form as required by her employer. The

Commission correctly concluded that claimant’s dispute with employer was not so compelling,

necessitous, or substantial that it left her with no reasonable alternative other than to quit work.

Phillips v. Dan River Mills, Inc., Commission Decision 2002-C (June 15, 1955).

       In addition, the Commission correctly concluded that claimant’s failure to elevate her

dispute with her supervisor to the company president was not reasonable. To constitute “good

cause” for a claimant to voluntarily leave employment, the consistent position of the

Commission, “acquiesced in by the General Assembly,” has required an employee to “take those

steps that could be reasonably expected of a person desirous of retaining his employment before

hazarding the risks of unemployment.” Lee, 1 Va. App. at 85, 335 S.E.2d at 106. Here, claimant

failed to notify the company president of her dispute with her supervisor. The Commission

found incredible claimant’s assertion that she believed the president of the company had no

authority over her supervisor, the vice president. Because claimant did not elevate her complaint

to the company president, she failed to take all reasonably expected steps to resolve her dispute

with her supervisor.




                                                 -6-
       Accordingly, we affirm the decision of the circuit court upholding the Commission’s

decision that claimant left work voluntarily and without good cause, and was therefore ineligible

for unemployment compensation benefits.

                                                     B.

       Claimant also asserts that the circuit court erred by finding that the Commission properly

considered, as part of the record of the case, employer’s unsworn statements to the deputy

examiner.

       16 Va. Admin. Code § 5-80-10(B) provides that:

               This informal interview [with the deputy examiner] shall not be
               recorded in any way, although notes can be taken by the deputy.
               Statements made by parties or witnesses shall not be taken under
               oath and formal examination or cross-examination shall not be
               permitted. The deputy shall direct questions to the parties and
               witnesses. The parties may also ask questions of each other and
               the witnesses. Rebuttal to statements made by opposing parties or
               witnesses shall be permitted. . . . The record of facts of the
               proceeding shall become a part of the commission’s records.

(Emphasis added.) See also 16 Va. Admin. Code § 5-80-20(F)(4) (“On motion of the appeals

examiner, or any party, documents already in a claimant’s file or obtained during the course of a

hearing may be admitted into the record as exhibits provided they are relevant to the issues in

dispute.”).

       During claimant’s telephonic hearing with the appeals examiner, the appeals examiner

explained to claimant that his proposed Exhibit 6 contained the record of facts obtained by the

deputy examiner, including employer’s statement regarding claimant’s departure from the office.

The appeals examiner explicitly stated that Exhibit 6 contained “the notes that the deputy

[examiner] took when he had the fact finding interview with both you and the employer.” When

the appeals examiner asked claimant if she had any objection to the exhibits being entered into

the record, claimant replied, “[n]o, none at all.”


                                                 -7-
       In Baker v. Babcock & Wilcox Co., 11 Va. App. 419, 399 S.E.2d 630 (1990), this Court

held that, where a claimant seeks an initial award of unemployment compensation benefits, she

“possesse[s] no absolute constitutional right of cross-examination.” Id. at 427, 399 S.E.2d at 635

(footnote omitted). Moreover, the Commission does not err by considering employer’s unsworn

statement to the deputy examiner where, as here, claimant did not object to entering employer’s

statement into the record, and where she did not seek to cross-examine employer at her hearing

with the appeals examiner. “If claimant did not enjoy the right of confrontation and

cross-examination or any of the other rights available to [her] under the laws and regulations, it

was not because they were denied [her]; it was, insofar as the record discloses, only because

[s]he did not pursue them.” Klimko v. Va. Emp’t Comm’n, 216 Va. 750, 762-63, 222 S.E.2d

559, 569-70 (1976). Accordingly, the circuit court did not err by finding that the Commission

properly considered, as part of the agency record, employer’s unsworn statements to the deputy

examiner.

                                       III. CONCLUSION

       For the foregoing reasons, and for the reasons articulated by the circuit court in its letter

opinion, we hold: (i) that the Commission did not err by considering employer’s unsworn

statements to the deputy examiner as part of the agency record, and (ii) that the Commission did

not err by finding claimant ineligible for unemployment compensation benefits.

                                                                                           Affirmed.




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