Ben K. Gavie v. Virginia Employment Commission and AGC Field Operations, LLC

Opinion

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.