COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
WILLIAM S. HENDERSON
v. Record No. 1056-99-2 MEMORANDUM OPINION * PER CURIAM VIRGINIA EMPLOYMENT COMMISSION AND SEPTEMBER 14, 1999 COUNTY OF HENRICO
FROM THE CIRCUIT COURT OF HENRICO COUNTY Buford M. Parsons, Jr., Judge
(William S. Henderson, pro se, on briefs).
(Mark L. Earley, Attorney General; Lisa J. Rowley, Assistant Attorney General, on brief), for appellee Virginia Employment Commission.
No brief for appellee County of Henrico.
William S. Henderson contends the Circuit Court of Henrico
County (circuit court) erred in affirming a decision of the
Virginia Employment Commission (Commission) that disqualified
him from receiving unemployment benefits. The Commission found
that the Henrico County Department of Public Works (the County)
discharged Henderson for misconduct connected with work under
Code § 60.2-618(2). Henderson further contends that the circuit
court denied him a fair hearing and that he was wrongfully
terminated in contravention of the Americans with Disabilities
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Act. Upon reviewing the record and briefs of the parties, we
conclude this appeal is without merit. Accordingly, we
summarily affirm the circuit court's decision. See Rule 5A:27.
Sufficiency of the Evidence
"Initially, we note that in any judicial proceedings 'the
findings of the commission 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.'" Israel v. Virginia Employment Comm'n, 7 Va. App. 169,
172, 372 S.E.2d 207, 209 (1988) (citation omitted). "In accord
with our usual standard of review, we 'consider the evidence in
the light most favorable to the finding by the Commission.'"
Wells Fargo Alarm Services, Inc. v. Virginia Employment Comm'n,
24 Va. App. 377, 383, 482 S.E.2d 841, 844 (1997) (citation
omitted).
So viewed, the evidence proved that Henderson was employed
by the County as a street maintenance worker from September 17,
1997 through February 17, 1998. The County has a policy
requiring employees to notify their supervisor each day they are
absent from work, unless they are otherwise excused from that
requirement. Henderson did not return to work after February
17, 1998 because of an injury he had sustained in November 1997.
Henderson went to his doctor on February 23, 1998 and
obtained a note excusing him from work through March 19, 1998.
- 2 - He did not, however, notify his supervisor, Ron Wehry, of his
absence until February 25, 1998, at which time Wehry told
Henderson to bring in a doctor's note supporting his continued
absence. Wehry did not hear from Henderson after that, and
Henderson did not present the County with the doctor's note
until after he was discharged. Henderson came to his employer's
office on March 6, 1998 to pick up his paycheck and to talk with
Wehry, but Wehry was away from the office. Henderson was
advised to call back and schedule an appointment with Wehry, but
Henderson failed to do so.
On March 20, 1998, the County advised Henderson that he was
discharged for his failure to properly notify the County
regarding his absence from work.
Henderson testified that he called the office every day
during his absence. 1 Wehry testified, however, that he never
heard from Henderson after February 25, 1998. The County
conceded that Henderson called in on a number of occasions, but
asserted that Henderson did not speak with Wehry as required.
[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 1 In his statement to the claims deputy, preceding his appeals hearings, Henderson indicated that he did not know whether he called in between February 25 and March 6 and that he did not contact his employer after March 6 until he received the discharge letter.
- 3 - 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). "Whether an employee's behavior
constitutes misconduct . . . is a mixed question of law and fact
reviewable by this court on appeal." Israel, 7 Va. App. at 172,
372 S.E.2d at 209.
When viewed in a light most favorable to the Commission and
the County, the record establishes that Henderson failed to
comply with the County's policy to provide proper notice to his
supervisor regarding his absences. Despite being instructed to
do so, Henderson did not bring in his doctor's note following
his February 25, 1998 conversation with Wehry until after he was
discharged. And Henderson also failed to schedule an
appointment with Wehry after being directed to do so on March 6,
1998. The requirements the County sought to impose on Henderson
regarding his extended absence were reasonable. Henderson's
failure to comply with these requirements demonstrated a
deliberate and willful disregard of his duties and obligations
as a county employee, and constituted misconduct connected with
work.
"Once the employer has borne the burden of showing
misconduct connected with the work, . . . the burden shifts to
the employee to prove circumstances in mitigation of his or her
- 4 - 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). Whether a claimant's evidence
sufficiently mitigates his behavior so as to avoid
disqualification for benefits is a question of fact for the
Commission. See Britt v. Virginia Employment Comm'n, 14 Va.
App. 982, 986, 420 S.E.2d 522, 525 (1992).
Henderson testified that he called in every day, but that
Wehry was never present or otherwise available to talk to him.
He claimed that he was told to bring in his doctor's note when
he returned to work and that he did not have a proper, written
diagnosis to give to his employer.
The Commission was not persuaded by Henderson's evidence of
mitigating circumstances. The record supports the Commission's
finding that the County discharged Henderson for misconduct
connected with work and that Henderson failed to present
sufficient evidence in mitigation. Accordingly, the Commission
did not err in disqualifying him from receiving unemployment
benefits.
Right to a Fair Hearing
In his appellate brief, Henderson's first question
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
WILLIAM S. HENDERSON
v. Record No. 1056-99-2 MEMORANDUM OPINION * PER CURIAM VIRGINIA EMPLOYMENT COMMISSION AND SEPTEMBER 14, 1999 COUNTY OF HENRICO
FROM THE CIRCUIT COURT OF HENRICO COUNTY Buford M. Parsons, Jr., Judge
(William S. Henderson, pro se, on briefs).
(Mark L. Earley, Attorney General; Lisa J. Rowley, Assistant Attorney General, on brief), for appellee Virginia Employment Commission.
No brief for appellee County of Henrico.
William S. Henderson contends the Circuit Court of Henrico
County (circuit court) erred in affirming a decision of the
Virginia Employment Commission (Commission) that disqualified
him from receiving unemployment benefits. The Commission found
that the Henrico County Department of Public Works (the County)
discharged Henderson for misconduct connected with work under
Code § 60.2-618(2). Henderson further contends that the circuit
court denied him a fair hearing and that he was wrongfully
terminated in contravention of the Americans with Disabilities
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Act. Upon reviewing the record and briefs of the parties, we
conclude this appeal is without merit. Accordingly, we
summarily affirm the circuit court's decision. See Rule 5A:27.
Sufficiency of the Evidence
"Initially, we note that in any judicial proceedings 'the
findings of the commission 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.'" Israel v. Virginia Employment Comm'n, 7 Va. App. 169,
172, 372 S.E.2d 207, 209 (1988) (citation omitted). "In accord
with our usual standard of review, we 'consider the evidence in
the light most favorable to the finding by the Commission.'"
Wells Fargo Alarm Services, Inc. v. Virginia Employment Comm'n,
24 Va. App. 377, 383, 482 S.E.2d 841, 844 (1997) (citation
omitted).
So viewed, the evidence proved that Henderson was employed
by the County as a street maintenance worker from September 17,
1997 through February 17, 1998. The County has a policy
requiring employees to notify their supervisor each day they are
absent from work, unless they are otherwise excused from that
requirement. Henderson did not return to work after February
17, 1998 because of an injury he had sustained in November 1997.
Henderson went to his doctor on February 23, 1998 and
obtained a note excusing him from work through March 19, 1998.
- 2 - He did not, however, notify his supervisor, Ron Wehry, of his
absence until February 25, 1998, at which time Wehry told
Henderson to bring in a doctor's note supporting his continued
absence. Wehry did not hear from Henderson after that, and
Henderson did not present the County with the doctor's note
until after he was discharged. Henderson came to his employer's
office on March 6, 1998 to pick up his paycheck and to talk with
Wehry, but Wehry was away from the office. Henderson was
advised to call back and schedule an appointment with Wehry, but
Henderson failed to do so.
On March 20, 1998, the County advised Henderson that he was
discharged for his failure to properly notify the County
regarding his absence from work.
Henderson testified that he called the office every day
during his absence. 1 Wehry testified, however, that he never
heard from Henderson after February 25, 1998. The County
conceded that Henderson called in on a number of occasions, but
asserted that Henderson did not speak with Wehry as required.
[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 1 In his statement to the claims deputy, preceding his appeals hearings, Henderson indicated that he did not know whether he called in between February 25 and March 6 and that he did not contact his employer after March 6 until he received the discharge letter.
- 3 - 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). "Whether an employee's behavior
constitutes misconduct . . . is a mixed question of law and fact
reviewable by this court on appeal." Israel, 7 Va. App. at 172,
372 S.E.2d at 209.
When viewed in a light most favorable to the Commission and
the County, the record establishes that Henderson failed to
comply with the County's policy to provide proper notice to his
supervisor regarding his absences. Despite being instructed to
do so, Henderson did not bring in his doctor's note following
his February 25, 1998 conversation with Wehry until after he was
discharged. And Henderson also failed to schedule an
appointment with Wehry after being directed to do so on March 6,
1998. The requirements the County sought to impose on Henderson
regarding his extended absence were reasonable. Henderson's
failure to comply with these requirements demonstrated a
deliberate and willful disregard of his duties and obligations
as a county employee, and constituted misconduct connected with
work.
"Once the employer has borne the burden of showing
misconduct connected with the work, . . . the burden shifts to
the employee to prove circumstances in mitigation of his or her
- 4 - 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). Whether a claimant's evidence
sufficiently mitigates his behavior so as to avoid
disqualification for benefits is a question of fact for the
Commission. See Britt v. Virginia Employment Comm'n, 14 Va.
App. 982, 986, 420 S.E.2d 522, 525 (1992).
Henderson testified that he called in every day, but that
Wehry was never present or otherwise available to talk to him.
He claimed that he was told to bring in his doctor's note when
he returned to work and that he did not have a proper, written
diagnosis to give to his employer.
The Commission was not persuaded by Henderson's evidence of
mitigating circumstances. The record supports the Commission's
finding that the County discharged Henderson for misconduct
connected with work and that Henderson failed to present
sufficient evidence in mitigation. Accordingly, the Commission
did not err in disqualifying him from receiving unemployment
benefits.
Right to a Fair Hearing
In his appellate brief, Henderson's first question
presented is: "Did the dismissal of Henderson's appeal by the
District [sic] Court deny Henderson's constitutionally protected
right to a fair hearing?" Henderson, however, provided neither
- 5 - argument nor precedent in support of this question presented.
See Littlejohn v. Commonwealth, 24 Va. App. 401, 409, 482 S.E.2d
853, 857 (1997) (a party waives an issue on appeal if she does
not submit written argument on the issue in her appellate
brief); Rule 5A:20(e). Moreover, although the circuit court's
final order reflects that Henderson appeared before the court in
person, the record does not contain a transcript or statement of
facts. See White v. Morano, 249 Va. 27, 30, 452 S.E.2d 856, 858
(1995) (the onus of providing a sufficient record of appeal
falls upon the party seeking to reverse the circuit court's
decision). Without a proper record, we cannot determine whether
Henderson's rights were respected, or whether he properly
preserved this issue for appeal by objecting to the manner in
which the circuit court conducted his hearing. Accordingly, we
will not address this question presented.
Americans with Disabilities Act
Appellant contends that he was discharged in violation of
the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.
There is no evidence, however, that he raised this issue with
either the Commission or the circuit court. And we will not
address the issue for the first time on appeal. See Whitt v.
Race Fork Coal Corp., 18 Va. App. 71, 74, 441 S.E.2d 357, 359
(1994); Rule 5A:18.
- 6 - For the foregoing reasons, the judgment of the circuit
court is affirmed.
Affirmed.
- 7 -