Bryan J. Novotny v. Virginia Employment Commission

DENNIS J. SMITH, CHIEF JUDGE
MARCUS D. WILLIAMS
JANE MARUM ROUSH
LESLIE M.ALDEN
JONATHAN C.THACHER
n. TERRENCE NEY
RANOV I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J, SMITH
?AVID S. SCHELL
JAN _ BRODIE
LORRAINE NOHDLUND
BRETT A KASSAHIAN
MICHAEL F. OEVINE
JUCGES
BARNARD F JENNINGS
THOMAS J. MIDDLETON
THOMAS A. FORTKQRT
RICHARD J. JAMBOHSKY
JACK B. STEVENS
J. HOWE BPOWN
F. BFI1JCE BACH
M. LANGHORNE KEITH
ARTHUR B. WEREG6
KATHLEEN H. MACKAY
ROBERT W, WOOLDRIDGE, JR.
MICHAEL R MCWEENY
GAYLORD L FINCH, JR
STANLEY R KLEIN
RETTRED JUDGES

LETTER OPINION

October 4, 2011

Dear Mr. Johnson and Ms. Peay:

On September 9, 2011, this Court heard oral argument on the Petition for Judicial Review in the aforementioned case. At the conclusion of the hearing, the Court informed the parties that it would take the matter under advisement. After reviewing the parties' briefs and in light of the oral arguments made, the Court is now prepared to rule.

I. Background

This case arises from a decision of the Virginia Employment Commission (hereinafter "VEC"). Initially, the VEC ruled claimant Bryan Novotny (hereinafter "Petitioner") eligible for unemployment benefits with respect to his terrrhnation of employment from Marshall Fitness Enterprises (hereinafter "Marshall Fitness")- (Record at 31.) Later, a VEC Appeals Examiner reversed the earlier decision and disqualified Petitioner for benefits following a timely appeal by the employer, Marshall Fitness. Id. at 33. The decision of the Appeals Examiner was then appealed to a Special Examiner of the VEC who affirmed the disqualification. Id at 59. Petitioner filed a timely appeal in the Circuit Court pursuant to Via. Code § 60.2-625 (2011).

II. Analysis

A. Standard of Review

Under Va. Code § 60.2-625, the Circuit Court has statutory authority to review decisions of the VEC. On appellate review, the record is reviewed in the light most favorable to the VEC. Va. Employment Comm 'n v. Peninsula Emergency Physicians, Inc., 4 Va. App. 621, 626 (1987). The VEC's findings are deemed conclusive in the absence of fraud. Va. Code Ann § 60.2-625. The VEC's findings of fact need only be "supported by the evidence" for them to be binding on appeal, unless the court concludes that no evidence supports the findings. Unemployment Compensation Comm 'n v. Dan Riyer Mills, Inc., 197 Va. 816, 817 (1956). A Circuit Court may reject the VEC's findings only if "a reasonable mind would necessarily come to a different conclusion." Crafiv. Va. Employment Comm 'n., 8 Va. App. 607, 609 (1989). It should be noted that in assessing the credibility of witnesses, the VEC is not required to state its reasons for finding one witness more credible than another. Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 383 (1987). Moreover, since the credibility of witnesses is a factual determination, it is reserved to the VEC. Va. Employment Comm 'n v. Gantt, 7 Va. App. 631, 635 (1989).

B. Findings

The issue in this case is whether there is sufficient evidence in the record to support the VEC's determination that Petitioner was terminated for misconduct. Section 60.2-618(2) of the Code of Virginia provides for disqualification of benefits if the VEC finds that a claimant was discharged for misconduct. Misconduct includes deliberately violating a company rule reasonably designed to protect the legitimate business interests of the employer or a willful disregard of the employer's interests and the duties and obligations owed to the employer. Branchy. Virginia Employment Comm 'n., 219 Va. 609, 611 (1978). In the instant case, the VEC found that Petitioner had a duty to assist in planning and executing a fight night charity event and failed to do so. (Record at 56.)

Upon a review of the record, this court finds sufficient evidence to support the VEC's findings. Petitioner's one-page employment contract included a list of four duties and responsibilities, one of which was the following: "you are responsible for creating and executing in house events and promotions for the purpose of driving sales," Id. at 152. Petitioner admits that the owner of Marshall Fitness directed him to assist in planning and executing the fight night event. Id at 98-99. However, several members of the gym told the owner that Petitioner was not promoting the event. Id. at 78. For example, Petitioner was in charge of selling tickets, but the owner learned that "ticket sales were way behind." Id. at 76. Moreover, the record shows that Petitioner became confrontational when confronted by the owner about the lack of ticket sales. Id. Petitioner also admits that he was aware of the owner's frustration with his failure to

2 promote fight night: "[the owner] told me how disgusted'he was that I wouldn't help him with... fight night." Id. at 101-102. And finally, Petitioner admits to having knowledge that his reluctance to participate in the planning and execution of fight night might result in his temtination: "I was worried that he was going to fire me because I wouldn't take part in fight night" Id. at 103,

Once an employer presents a prima facie case of misconduct, then "the burden shifts to the claimant to prove 'circumstances m mitigation of such conduct'" McNamarav. Va. Employment Comm'n, 54 Va. App. 616, 628 (2009). tiMcNamara, "evidence of mitigation may appear in many forms which, singly or in combination, to some degree explain or justify the employee's conduct. Absent proof of circumstances in mitigation, established to the satisfaction of the fact-finder, the employee is 'disqualified for benefits.'" Id. In the instant case, Petitioner asserts two bases upon which be believes his misconduct was justified.

Petitioner's first argument was that he believed that the fight night event was illegal because it was not sanctioned by the Commonwealth of Virginia or the relevant boxing association; however, Petitioner did not offer evidence that any such sanction was required, nor did he prove that he would suffer any consequences if the event occurred without sanction. This Court agrees with the VEC that Petitioner's mere assertion that some type of authorization was required, without invoking any authority or proof that such authorization was necessary, is insufficient.

Petitioner's second argument was that the owner of Marshall Fitness requested Petitioner to sell tickets to the charity event in excess of the building occupancy limit at the facility; however, Petitioner failed to show that he was required to sell tickets in excess of the applicable occupancy limit, and the mere fact that Marshall Fitness ordered tickets in excess of the occupancy limit does not mean that the limit would necessarily have been violated. As Respondent pointed out in its brief, the employer might have obtained permission for a higher occupancy load prior to the event. Regardless, the fact remains that Petitioner had the ability to proceed with planiiing the event without being in violation of .the fire code, and he failed to do so.

In summary, Circuit Court review of factual detenninations made by the VEC is limited. This Court found sufficient evidence in the record to support the findings of the VEC regarding Petitioner's termination for misconduct at work; furthermore, Petitioner's arguments regarding mitigation are unpersuasive.

Accordingly, for the reasons stated above, the Petition for Judicial Review is DENIED. An Order in accordance with this Letter Opinion shall issue. Randy I. Bellows
Circuit Court Judge

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ORDER

FOR THE REASONS stated in the Letter Opinion issued today, the Petitioner's Petition for Judicial Review is DENIED. Randy I. Bellows
Circuit Court Judge

ENDORSEMENT OF THIS ORDER BY COUNSEL OF RECORD FOR THE
PARTIES IS WAIVED FN THE DISCRETION OF THE COURT PURSUANT TO RULE 1:13 OF THE SUPREME COURT OF VIRGINIA

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