Wilma S. Gardner v. VEC, Hercules Inc.

• Court: Court of Appeals of Virginia
• Decided: January 16, 1996
• Docket: 2240943
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton, and Overton Argued at Salem, Virginia

WILMA S. GARDNER

v. Record No. 2240-94-3 MEMORANDUM OPINION * BY JUDGE NELSON T. OVERTON VIRGINIA EMPLOYMENT COMMISSION, JANUARY 16, 1996 HERCULES, INC. and STANDARD INDUSTRIAL MAINTENANCE, INC.

FROM THE CIRCUIT COURT OF CARROLL COUNTY Duane E. Mink, Judge Margaret T. Schenck (Southwest Virginia Legal Aid Society, Inc., on briefs), for appellant.

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

No briefs or arguments for appellees Hercules, Inc. and Standard Industrial Maintenance, Inc.

Wilma Gardner appeals from a decision of the Circuit Court

of Carroll County affirming the Virginia Employment Commission's

denial of her claim for unemployment compensation benefits. The

Commission found Gardner disqualified for benefits because she

voluntarily resigned from her position without good cause. We

find adequate evidence in the record to support this

determination, and we affirm the decision of the trial court.

Gardner's employment entailed cleaning restrooms, a

cafeteria, and administrative offices. On her first day, she

noticed cigarette smoke in many of the work areas to which she * Pursuant to Code § 17-116.010 this opinion is not designated for publication. would be exposed. Smoke bothered her, and she told her

supervisor that she did not know if she would be able to handle

the smoke. Her supervisor told her that this job and all others

in the building would require her to come into contact with

cigarette smoke. Gardner nevertheless began work and continued

for three days. She then resigned by leaving a message with her

supervisor's receptionist. While she did not give any reason at

that time for her resignation, when she returned to pick up her

check later she stated that health problems had caused her to

leave. She did not seek medical treatment prior to her

resignation. She did not inform her employer that she could not

continue working because of the smoke nor did she request a

transfer. If an employee voluntarily leaves employment without good

cause, that individual becomes disqualified for unemployment

compensation. Code § 60.2-618(1). The question of good cause

must be considered with a two-part analysis. The Commission and

reviewing courts must first apply an objective standard to the

reasonableness of the employment dispute and then to the

reasonableness of the employee's efforts to resolve that dispute

before leaving. Umbarger v. Virginia Employment Comm'n, 12 Va.

App. 431, 435, 404 S.E.2d 380, 383 (1990).

Gardner's conduct does not rise to a level sufficient to

satisfy the second part of the analysis. "[A]n employee, who for

some reason, becomes dissatisfied with his work, must first

- 2 - pursue every available option open to him whereby he might

alleviate or correct the condition of which he complains before

relinquishing his employment." Lee v. Virginia Employment

Comm'n, 1 Va. App. 82, 85, 335 S.E.2d 104, 106 (1985). Gardner

mentioned that smoke bothered her on the first day. After that,

she made no attempts to correct the problem. She did not request

a transfer or leave. She did not discuss alternatives with her

supervisor. She did not even inform her supervisor of her

troubles until a week after she resigned. The record does not

disclose the required "steps that could be reasonably expected of

a person desirous of retaining his employment before hazarding

the risks of unemployment." Id. Having found that Gardner failed the second element of the

Umbarger two-part analysis, we need not discuss the first. The

Commission and the trial court properly disqualified Gardner from

unemployment benefits for her voluntary resignation without good

cause. Affirmed.

- 3 - BENTON, J., dissenting.

Gardner left her employment because of cigarette smoke in

her workplace environment and the harmful effect of the smoke on

her health. Thus, based on Umbarger v. VEC, 12 Va. App. 431, 404

S.E.2d 380 (1991), I would hold that the evidence proved that

Gardner had good cause to leave her employment.

The evidence in the record proved that Gardner informed her

supervisor on her first day of employment that she could not

tolerate cigarette smoke. The supervisor, who was smoking,

extinguished his cigarette and told her that "the only jobs . . .

[available] in that building . . . [put] you . . . in contact

with cigarette smoke." Gardner was employed and worked for three

days. However, she quit after she began to experience breathing

problems. The evidence proved that the employer had no jobs available

that would not expose Gardner to cigarette smoke. Gardner's

supervisor testified that "she was doing a great job," but he had

no job that was in a smoke-free environment. The supervisor

testified that "this job that she had would probably have been

the least [contact with cigarette smoke] because she was cleaning

in the administrative offices which took about 50 percent of her

time." Smoking, however, was permitted in the offices.

The evidence proved that all of Gardner's prior employment

had been in smoke-free environments. The evidence also proved

that Gardner suffered ill effects from cigarette smoke and that

- 4 - she informed the supervisor of her problem when she was hired.

In addition, the undisputed evidence proved that the employer had

no alternative employment available that was in a smoke-free

environment. Under Umbarger, Gardner was entitled to receive

unemployment benefits.

- 5 -