COURT OF APPEALS OF VIRGINIA

 

 

 Present:  Judges Benton, Coleman and Willis

 

 

 HEATHER R. SMITH

                                                                         MEMORANDUM OPINION*

 v.      Record No. 0003-99-4                                 PER CURIAM

                                                                             JULY 20, 1999

 S. W. RODGERS COMPANY, INC.

  AND VIRGINIA EMPLOYMENT COMMISSION                        

 

 

 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

 F. Bruce Bach, Judge

 

 (Paul McGlone, on brief), for appellant.

 

 (Mark L. Earley, Attorney General; Gaye Lynn 

 Taxey, Assistant Attorney General; 

 William A. Diamond, Assistant Attorney 

 General, on brief), for appellee Virginia 

 Employment Commission.

 

 No brief for appellee S. W. Rodgers Company, 

 Inc.

 

 

         Heather Smith contends the trial court erred in affirming a 

 decision of the Virginia Employment Commission that disqualified 

 her from receiving unemployment benefits.  The commission found 

 that Smith voluntarily quit her position with S. W. Rodgers 

 Company, Inc. (Rodgers), without good cause under Code

  60.2-618(1).  Upon reviewing the record and briefs of the 

 parties, we conclude this appeal is without merit.  Accordingly, 

 we summarily affirm the judgment of the trial court.  See Rule 

 5A:27.

         "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).  Smith 

 concedes that the facts found by the Special Examiner are 

 supported by the evidence.  

         "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 

 Smith worked as a load counter for Rodgers from October 2, 1995 

 through September 16, 1997.  The Special Examiner found as 

 follows: 

 In 1996, one of [Smith's] supervisors 

 grabbed her rear end and pinched her and 

 [Smith] responded by punching him in the 

 stomach.  The supervisor did not repeat that 

 conduct.  [Smith] complained to one 

 supervisor about the other, but she did not 

 take her complaints to higher management.

 

         The employer had published and 

 distributed a handbook to its employees 

 which advised that any complaint that an 

 employee had should be brought to the 

 attention of the personnel director.  

 [Smith] did not do so because she thought 

 that she may be the subject of retaliation 

 by her supervisors.

 

         On or about September 16, 1997, one of 

 the supervisors grabbed [Smith's] breast and 

 she pushed him away.  A short time later, 

 the other supervisor pulled up in his 

 vehicle and made a comment about [Smith's] 

 rear end.

 

         Following the September 16th incident, Smith went to the 

 owner's office to report this incident to the owner.  The owner 

 was unavailable.  However, the personnel director contacted 

 Smith and asked that she meet with him on September 18, 1997.  

 When Smith met with the personnel director and explained what 

 had happened, the personnel director told her that she should 

 have sought redress from him sooner.  The Special Examiner found 

 the following:

 The personnel director assured [Smith] that 

 he would speak to the supervisors involved.  

 He also told [Smith] that he would arrange 

 to assign her to a job where she would not 

 have contact with the supervisors.  

 

 The personnel director and Smith then spoke to the dispatcher, 

 who advised Smith to report to work on September 19, 1997.  The 

 dispatcher agreed to allow Smith to report on September 22, 

 1997.

         Smith did not report for work on September 22, 1997.  When 

 the dispatcher called Smith at home, she said she would not be 

 returning to work.  A short time later, the personnel director 

 called Smith and advised her that if she did not return to work, 

 she would be considered to have quit her job.  Smith refused to 

 return to work and informed the personnel director that on 

 September 16, 1997, prior to going to speak with the owner, she 

 had decided to cease working for Rodgers.  

         The commission denied Smith's application for unemployment 

 benefits.  On this appeal, Smith contends the trial court erred 

 in affirming the ruling of the commission.  She argues that the 

 work environment was so hostile that she could not reasonably be 

 expected to return to work.

         Code  60.2-618(1) states that:  "An 

 individual shall be disqualified for 

 benefits upon separation from the last 

 employing unit . . . if the Commission finds 

 such individual is unemployed because he 

 left work voluntarily without good cause."  

 Determining whether an employee voluntarily 

 quit without good cause is a mixed question 

 of law and fact reviewable on appeal. 

 

 Snyder v. Virginia Employment Comm'n, 23 Va. App. 484, 490-91, 

 477 S.E.2d 785, 788 (1996).  Determining good cause requires a 

 two-part analysis.  See id. at 491, 477 S.E.2d at 788.  First, 

 it must be determined whether the employee's dispute with her 

 employer is reasonable.  If the dispute is reasonable, then it 

 must be determined whether the employee made reasonable efforts 

 to resolve the dispute before quitting her employment.  See id. 

         [W]e [have previously] considered the 

 requirement of "good cause" in the context 

 of an employee who voluntarily leaves 

 employment and stated:  "[B]efore 

 relinquishing . . . employment . . . the 

 claimant must have made every effort to 

 eliminate or adjust with [the] employer the 

 differences or conditions of which [the 

 claimant] complains.  [The claimant] must 

 take those steps that could be reasonably 

 expected of a person desirous of retaining 

 . . . employment before hazarding the risks 

 of unemployment."  In other words, a 

 claimant must take all reasonable steps to 

 resolve . . . conflicts with [the] employer 

 and retain [that] employment before 

 voluntarily leaving that employment. 

 

 Umbarger v. Virginia Employment Comm'n, 12 Va. App. 431, 434-35, 

 404 S.E.2d 380, 383 (1991) (citation omitted).

         The record establishes that Smith had a legitimate 

 complaint regarding her employment.  The conduct of her 

 supervisors was deplorable and unacceptable.  Nevertheless, 

 Rodgers had an established grievance policy, of which Smith was 

 aware, to handle complaints like these.  When Smith sought to 

 register her complaint, the personnel director met with her and 

 responded with action.  Despite the personnel director's 

 assurance that he would speak to the supervisors and that he 

 would transfer her to another job site where she would no longer 

 come into contact with the two supervisors, Smith quit.  She 

 wanted Rodgers "to assure her that she would have absolutely no 

 contact with [those two supervisors] in the future." 

         The record supports the commission's finding that Smith 

 voluntarily quit her position without good cause.  There was no 

 evidence that the transfer offered to Smith was to a less 

 advantageous assignment.  The personnel director stated he would 

 speak to the supervisors about their conduct.  We cannot say 

 that the commission improperly concluded that Smith's need for 

 assurance was not "a reasonable expectation under the 

 circumstances."  Accordingly, the commission did not err in 

 disqualifying her from receiving unemployment benefits.

 Affirmed.

      *Pursuant to Code  17.1-413, recodifying Code  17-116.010, 

 this opinion is not designated for publication.

 

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