Brenda Bower v. VEC and Roanoke College

• Court: Court of Appeals of Virginia
• Decided: June 27, 1995
• Docket: 2373943
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

BRENDA BOWER MEMORANDUM OPINION * v. Record No. 2373-94-3 PER CURIAM JUNE 27, 1995 VIRGINIA EMPLOYMENT COMMISSION AND ROANOKE COLLEGE

FROM THE CIRCUIT COURT OF THE CITY OF SALEM Roy B. Willett, Judge

(Burton L. Albert, on brief), for appellant.

(James S. Gilmore, III, Attorney General; Patricia H. Quillen, Assistant Attorney General; Lisa J. Rowley, Assistant Attorney General, on brief), for appellee Virginia Employment Commission.

(W. Fain Rutherford; Elizabeth L. Niles; Woods, Rogers & Hazelgrove, on brief), for appellee Roanoke College.

The Virginia Employment Commission (VEC) found that Brenda

Bower was terminated for misconduct and was not entitled to

unemployment benefits. Bower appeals the judgment of the trial

court affirming that decision and contends that the VEC erred

when it determined that she was discharged for misconduct. Upon

reviewing the record and briefs of the parties, we conclude that

this appeal is without merit. Accordingly, we summarily affirm

the decision of the trial court. Rule 5A:27.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Under Code § 60.2-625(A), "the findings of the [VEC] 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." See Shifflett v. Virginia

Employment Comm'n, 14 Va. App. 96, 97, 414 S.E.2d 865, 865

(1992). "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. Virginia Employment Comm'n, 8 Va. App. 607, 609, 383 S.E.2d 271, 273

(1989). "Whether an employee's behavior constitutes misconduct,

however, is a mixed question of law and fact reviewable by this

court on appeal." Israel v. Virginia Employment Comm'n, 7 Va.

App. 169, 172, 372 S.E.2d 207, 209 (1988).

The VEC found that Bower, the manager of the Roanoke College

bookstore, received permission to purchase a used computer for

the bookstore in June 1991. When the computer had operational

problems in 1991, Bower took it to her son's place of business to

have it repaired. Although Bower did not intend to steal the

computer or to convert it to her personal use, the computer

remained at her son's place of business for nearly a year and was

used by employees at that business.

While completing an inventory in the spring of 1992, Bower

listed the computer as faculty supply, despite the objection of

her subordinate that the computer should be classified as a

capital asset. The computer had been tagged as a capital asset.

2 College procedure placed the responsibility for conversion of

assets at the cabinet level.

In January 1993, Bower was questioned by campus security

concerning the missing computer. When Bower admitted that she

had removed the computer, she was directed to return it. She

returned the computer after her offer to purchase it was

rejected. She was later terminated for removing property and

falsifying records. Under Code § 60.2-618(2), an employee who has been

discharged for work-related misconduct is disqualified for

unemployment benefits. [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.

Branch v. Virginia Employment Comm'n, 219 Va. 609, 611, 249

S.E.2d 180, 182 (1978).

Although the VEC found that the initial decision to remove

the computer in order to seek repairs was a mistake in judgment,

it found that Bower intentionally miscategorized the computer

during the inventory and reported that the computer was

physically present on campus when Bower knew it was not. As the

3 bookstore manager for over twenty years, Bower had a

responsibility to ensure inventories were correctly completed.

Her actions violated her employer's rules concerning inventories

and were contrary to her employer's legitimate business

interests.

While Bower argues in mitigation that she classified the

computer as faculty supply to ensure the computer was properly

accounted for, the evidence proved that the computer was a

capital asset and should have been so designated. Bower's

subordinate testified that erroneously listing the computer as

faculty supply indicated that an additional computer existed.

Moreover, Bower told campus security that the computer had been

taken to her son's place of business in November of 1992, not

1991, creating the appearance that the computer had been on

campus more recently than had been the case. In light of the evidence presented before the VEC, we cannot

say the record as a whole would lead a reasonable mind

necessarily to a different conclusion than that reached by the

VEC. Accordingly, the decision of the circuit court is summarily

affirmed.