COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
MARK N. DENISAR MEMORANDUM OPINION* v. Record No. 2861-03-4 PER CURIAM AUGUST 17, 2004 BARRETT HAULING AND VIRGINIA EMPLOYMENT COMMISSION
FROM THE CIRCUIT COURT OF WARREN COUNTY John E. Wetsel, Jr., Judge
(Mark Denisar, pro se, on brief).
(Nate L. Adams, III; Donald G. Powers, Senior Assistant Attorney General; Adams & Associates, P.C., on brief), for appellees.
Mark Denisar appeals a final order of the Circuit Court of Warren County affirming the
decision of the Virginia Employment Commission (VEC) to disqualify him from receiving
unemployment benefits. Based upon the administrative record of proceedings and argument, the
circuit court held that evidence supported the VEC’s findings of fact and that the VEC correctly
concluded, as a matter of law, that Denisar was discharged for misconduct in connection with his
work for Barrett Hauling (Barrett) and disqualified for benefits under Code § 60.2-618(2).
Denisar appeals that decision. In his brief, Denisar raises five questions presented, all of which
essentially contend the circuit court erred in finding that the evidence supported VEC’s decision.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission’s decision. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND
Denisar filed a claim for benefits with the VEC on October 15, 2002, alleging “lack of
work” arising from his former employment as a truck driver with Barrett. On or about
November 14, 2002, the deputy claims examiner concluded Denisar had been discharged for
refusing to take a load pursuant to the directive of his employer and therefore determined that he
was discharged for misconduct. The deputy held Denisar was ineligible for benefits.
Denisar appealed the adverse ruling to an appeals examiner. Following a hearing on the
matter, the examiner reversed the determination of the deputy and reinstated benefits. Barrett
appealed that decision.
The VEC considered the record and reversed the appeals examiner’s decision,
disqualifying Denisar from receiving benefits based upon his refusal to carry the load at the
request of his employer’s client. Denisar requested a reconsideration. Following a review of the
record, the VEC concluded the decision was “fully supported by the evidence and the law was
properly applied to the facts.” Denisar again requested reconsideration, which request was
denied.
Denisar then appealed the VEC’s decision to the circuit court, which reviewed the record
and heard argument by counsel. By order dated October 9, 2003, the circuit court affirmed the
decision of the VEC denying Denisar benefits. Denisar appeals the decision of the circuit court.
“On review, [we] must consider the evidence in the light most favorable to the finding by
the Commission.” Virginia Employment Comm’n v. Peninsula Emergency Physicians, Inc., 4
Va. App. 621, 626, 359 S.E.2d 552, 554-55 (1987). Code § 60.2-625 sets forth the standard of
“judicial review” for appeals from the decisions of the VEC. “[I]n such cases . . . the
Commission’s findings of fact, if supported by evidence and in the absence of fraud, are
conclusive.” Lee v. Virginia Employment Comm’n, 1 Va. App. 82, 85, 335 S.E.2d 104, 106
-2- (1985). Upon our review, we conclude that the VEC’s findings of fact are supported by evidence
and are therefore binding on appeal.
The evidence showed Barrett employed Denisar as a driver to haul lumber. His
employment began on April 9, 2002 and ended on July 8, 2002. Drivers for Barrett usually
worked from 7:00 a.m. until 5:00 p.m., but often worked overtime and continued hauling until
the scheduled work was completed.
Denisar holds a commercial driver’s license and is thereby bound by certain regulations
regarding maximum work hours on and off the road. He was scheduled to begin a vacation
beginning Saturday, June 29, 2002. Denisar testified that on Friday, June 28, 2002, he made
plans to celebrate his birthday with his father and to leave the job site by 5:00 p.m. He returned
from delivering a load at approximately 4:15 p.m., and was asked by the lumber store manager to
carry another load. Denisar refused, claiming he was leaving for the day. The manager
informed Denisar that the delivery was just a “garage drop,” which he could perform on his way
home without having to return to the store. Denisar still refused to carry the load. When he
returned to work from vacation on July 8, 2002, the store manager told Denisar to contact his
supervisor at Barrett. The supervisor then informed Denisar that his employment with the
company had been terminated.
ANALYSIS
Code § 60.2-618(2) provides for disqualification from receipt of unemployment benefits
if the VEC finds that the employee was discharged for work misconduct.
“[T]o establish misconduct [the] employer ha[s] the burden of proving that the
[employee] deliberately or willfully violated a company rule.” Bell Atlantic v. Matthews, 16
Va. App. 741, 745, 433 S.E.2d 30, 32 (1993).
[A]n employee is guilty of “misconduct connected with his work” when he deliberately violates a company rule reasonably designed -3- 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.
Branch v. Virginia Employment Comm’n, 219 Va. 609, 611, 249 S.E.2d 180, 182 (1978).
“[O]nce the employer has borne [this] burden . . . [it] shifts to the employee to prove
circumstances in mitigation of his or her conduct.” 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). Absent evidence to “explain or justify” such misconduct and “show mitigating
circumstances, the commission must find that benefits are barred.” Id. “‘Whether an
employee’s behavior constitutes misconduct, however, is a mixed question of law and fact
reviewable by this court on appeal.’” Wells Fargo Alarm Servs., Inc. v. Virginia Employment
Comm’n, 24 Va. App. 377, 384, 482 S.E.2d 841, 844 (1997) (citation omitted).
“An employee’s refusal to obey a reasonable directive of his or her employer may
constitute misconduct so as to disqualify that employee from unemployment benefits.” Helmick
v. Economic Dev. Corp., 14 Va. App. 853, 859, 421 S.E.2d 23, 26 (1992). Indeed, we have
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
MARK N. DENISAR MEMORANDUM OPINION* v. Record No. 2861-03-4 PER CURIAM AUGUST 17, 2004 BARRETT HAULING AND VIRGINIA EMPLOYMENT COMMISSION
FROM THE CIRCUIT COURT OF WARREN COUNTY John E. Wetsel, Jr., Judge
(Mark Denisar, pro se, on brief).
(Nate L. Adams, III; Donald G. Powers, Senior Assistant Attorney General; Adams & Associates, P.C., on brief), for appellees.
Mark Denisar appeals a final order of the Circuit Court of Warren County affirming the
decision of the Virginia Employment Commission (VEC) to disqualify him from receiving
unemployment benefits. Based upon the administrative record of proceedings and argument, the
circuit court held that evidence supported the VEC’s findings of fact and that the VEC correctly
concluded, as a matter of law, that Denisar was discharged for misconduct in connection with his
work for Barrett Hauling (Barrett) and disqualified for benefits under Code § 60.2-618(2).
Denisar appeals that decision. In his brief, Denisar raises five questions presented, all of which
essentially contend the circuit court erred in finding that the evidence supported VEC’s decision.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission’s decision. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND
Denisar filed a claim for benefits with the VEC on October 15, 2002, alleging “lack of
work” arising from his former employment as a truck driver with Barrett. On or about
November 14, 2002, the deputy claims examiner concluded Denisar had been discharged for
refusing to take a load pursuant to the directive of his employer and therefore determined that he
was discharged for misconduct. The deputy held Denisar was ineligible for benefits.
Denisar appealed the adverse ruling to an appeals examiner. Following a hearing on the
matter, the examiner reversed the determination of the deputy and reinstated benefits. Barrett
appealed that decision.
The VEC considered the record and reversed the appeals examiner’s decision,
disqualifying Denisar from receiving benefits based upon his refusal to carry the load at the
request of his employer’s client. Denisar requested a reconsideration. Following a review of the
record, the VEC concluded the decision was “fully supported by the evidence and the law was
properly applied to the facts.” Denisar again requested reconsideration, which request was
denied.
Denisar then appealed the VEC’s decision to the circuit court, which reviewed the record
and heard argument by counsel. By order dated October 9, 2003, the circuit court affirmed the
decision of the VEC denying Denisar benefits. Denisar appeals the decision of the circuit court.
“On review, [we] must consider the evidence in the light most favorable to the finding by
the Commission.” Virginia Employment Comm’n v. Peninsula Emergency Physicians, Inc., 4
Va. App. 621, 626, 359 S.E.2d 552, 554-55 (1987). Code § 60.2-625 sets forth the standard of
“judicial review” for appeals from the decisions of the VEC. “[I]n such cases . . . the
Commission’s findings of fact, if supported by evidence and in the absence of fraud, are
conclusive.” Lee v. Virginia Employment Comm’n, 1 Va. App. 82, 85, 335 S.E.2d 104, 106
-2- (1985). Upon our review, we conclude that the VEC’s findings of fact are supported by evidence
and are therefore binding on appeal.
The evidence showed Barrett employed Denisar as a driver to haul lumber. His
employment began on April 9, 2002 and ended on July 8, 2002. Drivers for Barrett usually
worked from 7:00 a.m. until 5:00 p.m., but often worked overtime and continued hauling until
the scheduled work was completed.
Denisar holds a commercial driver’s license and is thereby bound by certain regulations
regarding maximum work hours on and off the road. He was scheduled to begin a vacation
beginning Saturday, June 29, 2002. Denisar testified that on Friday, June 28, 2002, he made
plans to celebrate his birthday with his father and to leave the job site by 5:00 p.m. He returned
from delivering a load at approximately 4:15 p.m., and was asked by the lumber store manager to
carry another load. Denisar refused, claiming he was leaving for the day. The manager
informed Denisar that the delivery was just a “garage drop,” which he could perform on his way
home without having to return to the store. Denisar still refused to carry the load. When he
returned to work from vacation on July 8, 2002, the store manager told Denisar to contact his
supervisor at Barrett. The supervisor then informed Denisar that his employment with the
company had been terminated.
ANALYSIS
Code § 60.2-618(2) provides for disqualification from receipt of unemployment benefits
if the VEC finds that the employee was discharged for work misconduct.
“[T]o establish misconduct [the] employer ha[s] the burden of proving that the
[employee] deliberately or willfully violated a company rule.” Bell Atlantic v. Matthews, 16
Va. App. 741, 745, 433 S.E.2d 30, 32 (1993).
[A]n employee is guilty of “misconduct connected with his work” when he deliberately violates a company rule reasonably designed -3- 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.
Branch v. Virginia Employment Comm’n, 219 Va. 609, 611, 249 S.E.2d 180, 182 (1978).
“[O]nce the employer has borne [this] burden . . . [it] shifts to the employee to prove
circumstances in mitigation of his or her conduct.” 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). Absent evidence to “explain or justify” such misconduct and “show mitigating
circumstances, the commission must find that benefits are barred.” Id. “‘Whether an
employee’s behavior constitutes misconduct, however, is a mixed question of law and fact
reviewable by this court on appeal.’” Wells Fargo Alarm Servs., Inc. v. Virginia Employment
Comm’n, 24 Va. App. 377, 384, 482 S.E.2d 841, 844 (1997) (citation omitted).
“An employee’s refusal to obey a reasonable directive of his or her employer may
constitute misconduct so as to disqualify that employee from unemployment benefits.” Helmick
v. Economic Dev. Corp., 14 Va. App. 853, 859, 421 S.E.2d 23, 26 (1992). Indeed, we have
previously held that insubordination can constitute misconduct connected with work. See Wood
v. Virginia Employment Comm’n, 20 Va. App. 514, 518-19, 458 S.E.2d 319, 321 (1995).
The VEC found that Denisar unreasonably refused a request of Barrett’s client which
constituted misconduct connected with work. Denisar’s testimony revealed he returned to the
store at 4:15 p.m., checked out and got into his car. When Harley James, the store manager,
approached Denisar and asked him to carry one more load, Denisar refused. James estimated
Denisar would be able to complete the delivery of the load before 5:00 p.m. He denied Denisar
mentioned that he was approaching the limit of time he was permitted to drive.
The circuit court noted that “[t]he evidence was in conflict in this case, and the
Commission accepted the Employer’s version of the circumstances of the discharge.” The -4- determination of a witness’ credibility is within the fact finder’s exclusive purview. See
Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). The
credibility finding is supported by evidence in the record.
“[T]he burden of proving mitigating circumstances rests upon the employee.” Kennedy’s
Piggly Wiggly Stores v. Cooper, 14 Va. App. 701, 705, 419 S.E.2d 278, 280-81 (1992). The
record showed that at the time of the misconduct, Denisar’s stated reasons for refusing to carry
the load consisted of his vacation plans and his plans to celebrate his birthday with his father.
Such personal plans do not constitute mitigating factors so as to avoid the disqualifying
provisions of Code § 60.2-618(2).
The circuit court upheld the VEC finding that no mitigating circumstances have been
proven. We find no error in those decisions. Accordingly, the decision of the circuit court is
summarily affirmed.
Affirmed.
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