Opinion
Docket No.: CL17-5367
12-21-2017
GIFFORD WHITEHURST JR., Plaintiff, v. VIRGINIA EMPLOYMENT COMMISSION and THE CHRYSLER MUSEUM, INC., Defendants.
FINAL ORDER REGARDING DEFENDANT'S PETITION FOR JUDICIAL REVIEW
THIS CAUSE came to be heard on November 6, 2017, upon the Petition for Judicial Review (the "Petition") filed by Plaintiff Gifford Whitehurst Jr. appealing the administrative decision of Defendant Virginia Employment Commission (the "Commission"), which determined that Whitehurst was disqualified from receiving unemployment compensation. Whitehurst presents the following questions to the Court on appeal: (1) "Was Petitioner afforded a reasonable opportunity for fair hearing . . . ?"; (2) "Was Petitioner's evidence of mitigation sufficient to excuse his misconduct and qualify him for unemployment benefits?"; (3) "Was the evidence sufficient to disqualify Petitioner for unemployment benefits?"; and (4) "Was there evidence of fraud or concealment of information, including collusion, in Defendant Commission's decision making process, with respect to Petitioner being disqualified for benefits?" For the reasons discussed herein, the Court DENIES Whitehurst's Petition for Judicial Review.
BACKGROUND
From October 21, 2013, to October 13, 2016, Whitehurst was employed as a senior security officer for The Chrysler Museum, Inc. (the "Museum"). On October 13, 2016, the Museum's human resources manager and Whitehurst's immediate manager met with Whitehurst to discuss alleged misconduct that had come to their attention. (R. 7-8.) The Museum had received a report that on October 4, 2016, Whitehurst did not follow proper procedures in response to a museum alarm that sounded while he was on duty. (R. 10.) The Museum also had video surveillance footage of Whitehurst allegedly falsifying his time records and taking an extended break while he was supposed to be monitoring equipment that day. (Id.) During the meeting to discuss these allegations, the managers expressed that they had concerns about the allegations, at which time "Whitehurst refused to discuss [the allegations,] raised his voice, and abruptly stood up to leave the meeting, [and] when asked to be seat [sic], he refused. This is when he was notified that we had no other recourse than to terminate his employment." (R. 8.) The Museum then sent Whitehurst a detailed letter identifying the misconduct on which his termination was based, which was dated October 13, 2016. (R. 10-11.)
Whitehurst applied for unemployment benefits on October 23, 2016. (Pet. for Judicial Review 2.) A Deputy for the Commission completed a fact-finding interview by telephone on November 10, 2016, in which both Whitehurst and the Museum's human resources manager participated. (R. 20.) On November 16, 2016, the Commission sent Whitehurst a notice of the Deputy's determination, informing Whitehurst that he would be disqualified from receiving unemployment benefits effective October 23, 2016. (R. 26.) In support of this determination, the notice cited Section 60.2-618(2) of the Virginia Unemployment Compensation Act (the "Act") and stated that Whitehurst would be disqualified from receiving benefits because "the information presented [was] sufficient to establish that [he] was discharged due to misconduct in connection with work." (Id.)
On December 16, 2016, Whitehurst filed an appeal, alleging the following: the Commission's decision violated his right to a fair and impartial hearing primarily because it relied on the Museum's statements and documents, he was not provided copies of the documents before the hearing, he was denied a meaningful opportunity to present his own evidence, the Commission relied on irrelevant evidence, and the Museum did not provide evidence supporting its claim regarding the reason for discharge. (R. 32-34.) Additionally, Whitehurst claimed in his appeal that he was not notified of the reason for his termination until October 18, 2016. (R. 31.) Specifically, Whitehurst claimed that although the Museum managers had informed him of their concerns, he was unaware of the reason for his termination until he received a termination letter on October 18, 2016, and he could "only surmise that the termination was based on [him] walking out of the meeting and departing the building for good." (Id.)
The Court notes that the Record contains a United States Postal Service tracking page, which indicates the letter was mailed on October 14, 2016, but not delivered until October 18, 2016. --------
In response, the Commission acknowledged in a letter sent to Whitehurst dated December 20, 2016, that an appeal had been filed. (R. 28.) A telephonic hearing was set for January 27, 2017. (R. 35.) On January 24, 2017, Whitehurst contacted the Commission to request a postponement because he desired more time to acquire evidence and review the case. (R. 47.) This request was denied because Whitehurst "had since late December to prepare." (Id.) On January 26, 2017, the day before the scheduled hearing, Whitehurst faxed a request to have his hearing postponed based only on the fact that he—as the claimant—was requesting more time. (R. 48.) A hearing nevertheless was held on the originally scheduled hearing date of January 27, 2017, in which Whitehurst participated. (R. 51.) On January 31, 2017, the Appeals Examiner mailed to Whitehurst the appeal decision, which summarized the findings of fact, reviewed the relevant law, and affirmed the decision to disqualify Whitehurst for benefits "because he was discharged for misconduct connected with work" and demonstrated no mitigating factors "to explain or excuse the misconduct for which he was discharged." (R. 51-54.)
On February 22, 2017, Whitehurst attempted to appeal the decision of the Appeals Examiner, outlining his grievances regarding the hearing he received. (R. 56-67.) Whitehurst alleged that the Appeals Examiner interfered with his ability to cross examine the Museum representatives, exhibited bias in favor of the Museum, took a break during the hearing that put Whitehurst at an unfair disadvantage, and did not assist Whitehurst in presenting his case as required by the Virginia Administrative Code. (R. 56-61.) In response to Whitehurst's submission, the Chief Appeals Examiner sent Whitehurst a letter explaining that the Appeals Examiner no longer had jurisdiction, that any concerns should be brought directly to the Commission, and that he would forward Whitehurst's correspondence to the Commission. (R. 55.) The Commission sent Whitehurst a "Notice of Appeal" on February 24, 2017, confirming that an appeal to the Commission had been filed. (R. 68.)
Whitehurst also sent the Office of Commission Appeals a Request for Hearing to Present Additional Evidence on March 2, 2017 (R. 81-84), and an Amended Request for Hearing to Present Additional Evidence on March 9, 2017 (R. 85-92). In response, the Special Examiner for the Commission sent Whitehurst a letter stating that, pursuant to Title 16, Section 5-80-30(B), additional evidence only is taken when it is either shown that (1) "the additional evidence [i]s material and not merely cumulative, corroborative, or collateral; [c]ould not have been presented at the prior hearing through the exercise of due diligence; and . . . is likely to produce a different result at a new hearing;" or, alternatively, (2) "[t]he record of proceedings before the Appeals Tribunal is insufficient to enable the Commission to make proper, accurate, or complete finds of fact or conclusions of law." (R.95.) In the same letter, the Special Examiner explained that those criteria had not been met, that he was taking the additional evidence issue under advisement pending oral argument on the matter, and that the appeal had been set for a hearing with the Commission, which was scheduled and held on April 4, 2017. (R. 93-95, 282-325.)
On April 7, 2017, a Special Examiner issued an opinion in which it found that Whitehurst had received a reasonable opportunity for a fair hearing, denied the request to present additional testimony and evidence, and affirmed the decision of the Appeals Examiner disqualifying Whitehurst from benefits because he was discharged for misconduct. (R. 96-110.) The Special Examiner's opinion noted that Whitehurst had argued at the hearing that he had voluntarily left work on October 13, 2016, but admitted that he was informed he was being terminated before he left the meeting. (R. 106.) Furthermore, the Special Examiner explained that the Commission found that the Museum had met its burden of proving that Whitehurst was terminated for misconduct by providing "testimony, documentary evidence, and video evidence that the claimant deliberately violated its policies and showed willful disregard for its interests during the October 4, 2016, shift." (R. 107.) The Special Examiner also notes that the claimant did not contradict the documentary evidence constituting the misconduct; instead, Whitehurst argued that the Museum's selective enforcement of policies mitigated his misconduct, although he did not provide evidence of such selective enforcement. (R. 107-09.)
On May 8, 2017, Whitehurst filed a Petition for Judicial Review of the Commission decision in this Court, alleging that (1) the findings of fact in the Commission's decision were erroneous, (2) the Commission improperly admitted documents containing false statements, (3) information may have been concealed, (4) mitigating evidence was improperly evaluated and not evaluated, (5) the Special Examiner's Decision contains false statements, and (6) he was not provided a meaningful opportunity to present his case. (Pet. Judicial Review ¶¶ 21-29.) More specifically, Whitehurst alleges that the Commission relied on an incomplete mitigation of conduct statement and improperly evaluated evidence of mitigation when it determined that he did not meet his burden of proving mitigating circumstances. (Id. at 5, 7-8.) Whitehurst also alleges that the Commission relied on erroneous recitations of the facts and false statements in coming to its decision regarding his unemployment benefits. (Id. at 6.) Regarding the decision itself, Whitehurst claims that there is "possible evidence of concealment" not addressed by the Appeals Examiner and that the Special Examiner's decision contains false statements. (Id. at 7-8.) Lastly, Whitehurst asserts that he was not afforded a meaningful opportunity to present his case at a hearing because his postponement request was denied. (Id. at 9.)
In its answer, the Commission denies that it erred in its findings of fact or conclusions of law regarding Whitehurst's claim for benefits. (Commission Answer ¶ 1.) It asserts that the Court is confined to reviewing questions of law because the Commission's findings of fact are supported by evidence, its decision contains the correct interpretation and application of the law, and any claims of fraud have not been properly alleged or proven in the Petition. (Id. ¶ 2-3.) In the Museum's answer, filed on June 8, 2017, the Museum supports and agrees with the arguments in the Commission's answer. (See generally Museum Answer.)
STANDARD OF REVIEW
Virginia law states that "[w]ithin thirty days after the decision of the Commission upon a hearing . . . has been mailed, any party aggrieved who seeks judicial review shall commence an action in the circuit court of the county or city in which the individual who filed the claim was last employed." Va. Code § 60.2-625(A) (2014 Repl. Vol.). The Code of Virginia also provides that "[i]n any judicial proceedings under this chapter, the findings of the Commission as to the facts, if supported by the evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law." Id.
ANALYSIS
Whitehurst essentially presents three issues to the Court in his Petition. The first issue is whether the Petitioner was afforded a reasonable opportunity to present his case during his Commission appeals. If so, the appropriate next issue is whether there was sufficient evidence of fraud or concealment of information in the Commission's disqualification decision. The last issue is whether the Commission had sufficient evidence of misconduct to disqualify Whitehurst from unemployment benefits, and if so, whether Whitehurst presented mitigation evidence that excuses the misconduct.
Opportunity to Present Case
The Virginia Administrative Code outlines the requirements and procedure regarding "First Level Appeals" of Commission decisions. 16 Va. Admin. Code § 5-80-20 (2017). Of these requirements, one provision is applicable to Whitehurst's claims.
The Code states that "[s]pecial requests regarding dates or times of hearings will be given consideration; however, they need not always be honored." Id. § 5-80-20(C). More specifically, "[r]equests for postponement of scheduled hearings shall be granted only when a party or his authorized representative demonstrates good cause for an inability to appear at the scheduled date and time. Good cause shall be deemed to exist if a likelihood of material and substantial harm is shown." Id.
In his Petition, Whitehurst states that he was not afforded a meaningful opportunity to present his case because his request to postpone the January 27, 2017, hearing was denied. Although the Code provides for postponements, the party requesting a postponement is required to demonstrate good cause. When Whitehurst initially requested the hearing be postponed, he merely stated that he needed more time to review the evidence, and he subsequently submitted a form stating only that he—as the claimant—needed more time to prepare for his testimony. Given that Whitehurst had since at least December 16, 2016—the date he filed his appeal—to prepare for the hearing, the Court agrees with the Commission's determination that Whitehurst did not demonstrate good cause warranting a postponement of the hearing and that the lack of postponement did not create "a likelihood of material and substantial harm." See id. § 5-80-20(C).
Fraud
The Virginia Supreme Court has held that decisions of the Commission should be evaluated according to the same rules as court judgments when analyzing issues of fraud. Jones v. Willard, 224 Va. 602, 607-08, 299 S.E.2d 504, 508 (1983). A decision "procured by intrinsic fraud, i.e., by perjury, forged documents, or other incidents of trial related to issues material to the [decision], is voidable by direct attack at any time before the [decision] becomes final." Id. at 607, 299 S.E.2d at 508. In contrast, a decision "procured by extrinsic fraud, i.e., by conduct which prevents a fair submission of the controversy to the court, is void and subject to attack, direct or collateral, at any time." Id. at 607-08, 299 S.E.2d at 508.
[W]hen a party aggrieved by a decision of the Virginia Employment Commission alleges in his petition for review that the decision was procured by extrinsic fraud committed by the successful party and submits with the petition a proffer of proof, verified by affidavits of witnesses, the circuit court shall remand the cause to the Commission for a hearing on the issue if, upon review of the proffer and argument by counsel, the court finds the proffer sufficient as a matter of law to establish a prima facie case of such fraud.Id. at 608, 299 S.E.2d at 508.
Although Whitehurst claims that the decision to disqualify him from unemployment benefits was procured by fraud, he offered no specific proof of such fraud. A claim of intrinsic fraud at this stage is inappropriate because the Commission has since provided a final decision. See id. at 607, 299 S.E.2d at 508 (holding that a decision procured by intrinsic fraud is voidable until the decision becomes final). Furthermore, Whitehurst provided no evidence that the decision was "procured . . . by conduct which prevented fair submission of the controversy to the court," as required for a claim of extrinsic fraud. See id. at 607-08, 299 S.E.2d at 508.
In Jones v. Willard, the Supreme Court found that when the petitioner submitted a proffer of proof—verified by affidavits of witnesses—with his petition, the court had sufficient evidence to establish a prima facie case of extrinsic fraud as a matter of law. Id. at 608, 299 S.E.2d at 508. In contrast, Whitehurst offered no such proof of fraud; rather, he provided general assertions about potential fraud and phrased his allegations of concealment as "possible evidence." Given the non-specific and unsupported fraud claims, the Court lacks sufficient evidence of a prima facie showing of extrinsic fraud as a matter of law.
Misconduct
Because the Court finds that there is no evidence of fraud, the Court is required to affirm the Commission's findings of fact if supported by the evidence. See Va . Code § 60.2-625(A) (2014 Repl. Vol.). "The primary purpose of the Act is to provide temporary financial assistance to workmen who become unemployed through no fault of their own." Unemployment Compensation Comm'n v. Tomko, 192 Va. 463, 469, 65 S.E.2d 524, 528 (1951). Consequently,
an individual shall be disqualified for benefits upon separation from the last employing unit for whom he has worked 30 days or 240 hours or from any subsequent employing unit . . . if the Commission finds such individual is unemployed because he has been discharged for misconduct connected with his work.Va. Code § 60.2-618.
[A]n employee is guilty of "misconduct connected with his work" when he deliberately violates a company rule reasonably designed to protect the legitimate 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 to his employer.Branch v. Va. Emp't Comm'n, 219 Va. 609, 611, 249 S.E.2d 180, 182 (1978).
A rule created by an employer is presumed to "define[] the specific behavior considered to harm or to further the employer's interests," and when an employee violates that rule, he disregards those interests. Va. Emp't Comm'n v. Gantt, 7 Va. App. 631, 634, 376 S.E.2d 807, 811 (1989). An employer therefore "establish[es] a prima facie case of misconduct simply by showing a deliberate act which contravenes a rule reasonably designed to protect business interests." Id. at 634-35, 376 S.E.2d at 811. Once the employer meets its burden, the burden then shifts to the employee to provide evidence of mitigating circumstances regarding his conduct. Id. at 635, 376 S.E.2d at 811.
The Virginia Court of Appeals has provided a list of factors to be considered when evaluating unemployment benefits to determine whether employee actions constitute misconduct. These include the following: "the importance of the business interest at risk; the nature and purpose of the rule; prior enforcement of the rule; good cause to justify the violation; and consistency with other rules." Id. Essentially, the Commission looks to the totality of the circumstances to determine whether there was a deliberate act constituting misconduct. Id. "Absent circumstances of mitigation of such conduct, the employee is 'disqualified for benefits,' and the burden of proving mitigating circumstances rests upon the employee." Branch, 219 Va. at 611, 249 S.E.2d at 182.
"If the employee's evidence or the entire evidence fails to show mitigating circumstances, the commission must find that benefits are barred because a rule reasonably designed to protect a legitimate business interest was violated." Gantt, 7 Va. App. at 635, 376 S.E.2d at 811. In contrast, if there is evidence that mitigates the employee's violation of the rule, then "the trier-of-fact must balance this against the legitimate business interest being protected to determine whether the employee demonstrated a willful disregard of the employer's interest." Id. "Mitigating circumstances are likely to be those considerations which establish that the employee's actions were not in disregard of those interests. Evidence of mitigation may appear in many forms which, singly or in combination, to some degree explain or justify the employee's conduct." Id.
Here, Whitehurst's violations were directly related to his role as a security officer. His failure to report the alarm clearly was contrary to the business interest of keeping the museum secure and safe. Although improperly clocking time is more attenuated from the primary business interest, Whitehurst failed to watch the security monitors while clocked in and eating lunch, which—as discussed above—is directly adverse to the business interest of maintaining museum security. Thus, an analysis of the factors provided in Gantt results in a finding that the actions for which Whitehurst was terminated constitute willful misconduct for purposes of evaluating qualification for unemployment benefits.
The Court is satisfied that the Commission's findings of fact are supported by the evidence. The Commission relied on "testimony, documentary evidence, and video evidence that the claimant deliberately violated [the Museum's] policies" (R. 107) to arrive at its conclusions. Whitehurst's assertions do not counteract the video evidence of him taking an extended lunch break and failing to watch the museum security monitors. His assertions also do not counter the documentary evidence corroborating the falsified documents in conjunction with his extended break and his failure follow proper procedures in checking the documented alarms.
The Court also agrees with the Commission that Whitehurst did not prove any mitigating circumstances related to his breach of the Museum's policies. The purpose of his employment was to ensure the safety and security of the museum, and his misconduct was a clear violation of the procedures he was required to follow to support that purpose. Although Whitehurst claims that he was not informed of the reason for his termination until he received a letter five days later, there is sufficient evidence that he was aware of the violations alleged against him when he voluntarily left the October 13, 2016, meeting before it had concluded. Furthermore, although Whitehurst may claim that the hostile environment of the meeting caused him to exit, at most that would be a mitigating circumstance for exiting the meeting and not for the October 4, 2016, misconduct that led to the meeting—and ultimately to his termination.
In the "Applicable Case Law" section of his Petition, Whitehurst appears to imply that the Museum's delay between the alleged misconduct and his termination is also a mitigating factor. In support of this argument, Whitehurst cites Robinson v. Hurst Harvey Oil, Inc., 12 Va. App. 936, 407 S.E.2d 352 (1991). In Robinson, the Virginia Court of Appeals found that an employer terminating its employee three months after the employee's alleged misconduct is a mitigating factor because the delay implied that the employer condoned the employee's behavior. Here, however, the Museum addressed the issues with Whitehurst less than ten days after the alleged misconduct—much less than the three months in Robinson and easily attributable to the relevant investigation time.
Based on the testimony and documentary evidence in the record, the Court finds that the Commission had sufficient evidence to determine that Whitehurst's termination was for misconduct. Furthermore, the Court views Whitehurst's arguments regarding mitigating circumstances to be insufficient to excuse the misconduct for which he was terminated. As such, the Court affirms the Commission's decision to disqualify Whitehurst from unemployment benefits in accordance with the standard stated in Section 60.2-625(A) of the Code of Virginia.
CONCLUSION
Based on the above, the Court finds that the Commission's decision to disqualify Whitehurst from receiving unemployment benefits was based on sufficient evidence of misconduct in violation of the Museum's policies. The Court also finds that Whitehurst has not provided sufficient evidence of mitigating circumstances that justifies his misconduct or of fraud associated with the Commission's decisions. The Court therefore DENIES Whitehurst's Petition for Judicial Review and dismisses the case.
Any objections to this Order shall be submitted to the Court within fourteen days. Endorsements are waived pursuant to Rule 1:13. The Clerk shall mail or email copies of this Order to all counsel of record and any pro se parties.
IT IS SO ORDERED this 21th day of December, 2017.
/s/_________
David W. Lannetti
Circuit Court Judge