Trevor D. Williams v. Virginia Employment Commission and Manpower International

• Court: Court of Appeals of Virginia
• Decided: June 10, 2014
• Docket: 2376134
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Alston, Decker and Senior Judge Willis UNPUBLISHED

TREVOR D. WILLIAMS MEMORANDUM OPINION* v. Record No. 2376-13-4 PER CURIAM JUNE 10, 2014 VIRGINIA EMPLOYMENT COMMISSION AND MANPOWER INTERNATIONAL

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY John M. Tran, Judge

(Trevor D. Williams, pro se, on brief).

No brief for appellees.

Trevor D. Williams (hereinafter “appellant”) appeals the trial court’s ruling affirming a

decision by the Virginia Employment Commission (hereinafter “VEC”) finding appellant was

disqualified from receiving unemployment compensation benefits because he was discharged for

misconduct in connection with his work.

Appellant raises two assignments of error of appeal. First, he contends the trial court

committed reversible error “by disregarding the mitigating circumstances.” Second, he asserts

the trial court erred by “holding [him] to the same unemployment disqualification standards that

the court has done [sic] with managerial and/or supervisor positions.” Appellant has failed to

demonstrate that he presented these issues below. Rule 5A:18. Therefore, we summarily affirm

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

Background

Appellant was employed by a staffing agency, and in June of 2009 was assigned to work

for one of the agency’s clients as a data entry specialist. The agency had a policy that it could * Pursuant to Code § 17.1-413, this opinion is not designated for publication. discipline and/or terminate an employee who misrepresented the number of hours worked.

Appellant acknowledged the existence of this policy with his signature on March 13, 2003 as

noted in the Virginia Employment Commission’s decision.

Over the weekend of November 3-4, 2012, appellant obtained approval from the client to

work from his home. However, because his access code to the client’s proprietary database

expired on Friday, November 2, 2012, appellant discovered on November 3, 2012, he was unable

to access the database. Appellant contacted the client’s help desk, but it could not restore access

that weekend. Despite his inability to perform his primary job function, appellant billed eleven

hours to the client. On Monday, November 5, 2012, appellant reported he had lost access to the

database, and access was restored on November 8, 2012.

On December 12, 2012, the client’s on-site supervisor questioned appellant about the

time he had billed on November 3rd and 4th, and asked appellant to document his activity. Later

that day, appellant consulted with his agency to ascertain if the client had been in touch with the

agency. He provided no details to the agency about his discussion with the client supervisor, but

did acknowledge he had no access to a “particular system.”

The following week, on December 18, 2012, the client notified the agency it believed

appellant had falsified his hours because he did not have access to the database necessary to

perform his work, and he had failed to produce any evidence verifying he had performed work

for the client as indicated on his time entries. The next day, the agency spoke with appellant and

asked him why he had not produced documentation supporting his time entries. Appellant

replied, “[b]ecause I deleted everything. I don’t have anything to show her.”

The agency terminated appellant’s employment.

-2- Analysis

In the first assignment of error, appellant contends that he argued to the trial court “that

his call to the help desk coupled with the meeting with his manager[] were both mitigating

factors.” In support of this argument, appellant cites the following language from Branch v.

Virginia Emp’t Comm’n, 219 Va. 609, 249 S.E.2d 180 (1978):

In our view, an 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.

Id. at 611, 249 S.E.2d at 182 (citations omitted).

Appellant, however, does not cite the portion of the record in which he presented this

argument to the trial court. Furthermore, in the petition for judicial review filed by appellant in

the trial court, he argued he was terminated without adequate investigation into whether he

actually performed services supporting the time cards he submitted. His only other argument

was that the “[a]ppeals [e]xaminer wrongfully concluded that [he] had been discharged for

misconduct connected with work.” Appellant asserted “[t]his is in spite of the facts clearly

indicating that [he] committed no work place misconduct and actually worked on behalf of

Manpower and his assigned company during the affected period.” He did not specifically argue

that mitigating circumstances justified his misconduct. Accordingly, appellant has failed to

preserve this issue for our consideration on appeal. See Rule 5A:18. Under Rule 5A:18, the

“same argument must have been raised, with specificity, at trial before it can be considered on

appeal.” Correll v. Commonwealth, 42 Va. App. 311, 324, 591 S.E.2d 712, 719 (2004).

-3- Likewise, with respect to the second assignment of error, appellant cites nothing in the

record indicating he presented this argument to the trial court, and we find nothing in his petition

for review before the trial court indicating this argument was made below. Accordingly,

appellant has also failed to preserve this assignment of error for our consideration. Pursuant to

Rule 5A:18, we “will not consider an argument on appeal [that] was not presented to the trial

court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).

Thus, we dispense with oral argument and summarily affirm because the facts and legal

contentions are adequately presented in the materials before the Court and argument would not

aid the decisional process. See Code § 17.1-403; Rule 5A:27.

Affirmed.

-4-