Opinion
Docket No.: CL17-12731
07-03-2018
QUAN ALEXANDER, Petitioner, v. VIRGINIA EMPLOYMENT COMMISSION and JAAM LLC, Defendants.
FINAL ORDER REGARDING PETITION FOR JUDICIAL REVIEW
THIS CAUSE came to be heard on June 6, 2018, upon the Petition for Judicial Review (the "Petition") filed by Petitioner Quan Alexander appealing the administrative decision of Respondent Virginia Employment Commission (the "Commission"), which affirmed an Appeals Examiner's decision that Alexander was disqualified from receiving unemployment compensation. Alexander presents the following issues to the Court on appeal: (1) whether his former employer—franchisee JAAM LCC ("JAAM")—proved that Alexander left his employment voluntarily, as opposed to being discharged; and (2) if he did, whether Alexander left for good cause. For the reasons discussed herein, the Court DENIES Alexander's Petition for Judicial Review.
BACKGROUND
Alexander was employed by JAAM, doing business as Firehouse Subs, between May 9 and June 14, 2017. (R. 13, 63.) During that time, he held a crew member position at JAAM's eatery, which is located on Naval Station Norfolk (the "Naval Station") in the Navy Exchange complex. (R. 63-64.) Alexander alleges that on June 14 he was told by Ketan Patel ("Mr. Patel"), one of the franchise owners, that employee background checks would be conducted and that employees with a felony on their record could no longer work for JAAM because felons are not allowed to work on the Naval Station. (R. 73-74, 79-80.) Mr. Patel testified that he did not speak to Alexander specifically about background checks that day because "[Alexander] was never on the list" of those to be checked, but he did make it clear to all employees that their criminal backgrounds would be checked and those with a felony conviction could not continue to work for JAAM. (R. 80-81.) Alexander, who was a convicted felon prior to being employed by JAAM, clocked out of work that day at 1:49 p.m. and did not return on his next scheduled workday or thereafter. (R. 64, 73-75.) No background check on Alexander was performed. (R. 68, 80-81.) Two other JAAM employees who were present on June 14 signed statements indicating that Alexander voluntarily left work that day and that he had not been terminated. (R. 16, 20.)
Alexander claims that he clocked out at 1:49 p.m. on June 14 because he had finished his shift and was sent home early due to business being slow. (R. 74-75.) During that same hearing, however, Alexander denied leaving before the end of his shift, which was scheduled to finish at 3:00 p.m. (R. 64, 72-73.) Tosal Patel ("Ms. Patel"), another co-owner of JAAM, acknowledged that employees sometimes are sent home early when business is slow. (R. 70.) In fact, the record of Alexander's work times indicates that Alexander was often sent home early. (R. 17-19.)
Alexander filed for unemployment benefits and was initially found qualified based on the Deputy's Determination, mailed on July 24, 2017, that he was discharged by JAAM due to an unsatisfactory background check. (R. 21-22). JAAM appealed the determination on August 22, 2017. (R. 23-26.) The Deputy's Determination was reversed by the Decision of Appeals Examiner, mailed on September 19, 2017, which found that Alexander voluntarily left JAAM without good cause. (R. 42-45). Alexander testified that he did not return to work after June 14, 2017, because he knew he had a felony on his record, and Mr. Patel told him that background checks were going to be conducted and that employees who had a felony on their record could no longer work for the company. (R. 73-75.) Alexander also disclosed that Mr. Patel had told him on multiple previous occasions that he could not work for JAAM if he had a felony on his record. (R. 69, 78.) The Appeals Examiner opined that Alexander was never informed that he was being terminated but rather voluntarily left work on June 14 in anticipation of being discharged. (R. 43, 44.) According to the Appeals Examiner, "[Alexander] knew he had a felony conviction and as a result, [he] left the store before the end of his work shift at 1:49 p.m., and did not return, because he knew he would be discharged from his job due to a felony conviction on his record." (R. 43.)
The Court finds it surprising that, if it was JAAM's policy—pursuant to the Naval Station rules—to not employ convicted felons, a background check of Alexander apparently was not conducted before hiring him. Although Alexander may have lied on his employment application regarding his felon status, JAAM has consistently maintained that he was not discharged on June 14 and, thus, the rules regarding discharge for misconduct are inapplicable to this case.
Alexander timely appealed the Appeals Examiner's decision to the Virginia Employment Commission on October 5, 2017. (R. 49.) The Decision of the Commission, mailed on October 30, 2017, affirmed and sustained the Appeals Examiner's decision to disqualify Alexander for benefits, opining that the Appeals Examiner correctly applied the law to the findings of fact. (R. 49.) Alexander timely filed a Petition for Judicial Review with this Court on November 20, 2017. Alexander, pro se, and the Commission, by counsel, appeared before the Court on June 6, 2018, for a hearing on the Petition. At the conclusion of the hearing, the Court took the matter under advisement. The Court now rules on the Petition.
STANDARD OF REVIEW
According to Virginia law, "[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 further states that "[i]n any judicial proceedings under this chapter, 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." Id. "Commission findings may be rejected only if, in considering the record as a whole, a reasonable mind would necessarily come to a different conclusion." Va. Emp't Comm'n v. Fitzgerald, 19 Va. App. 491, 493, 452 S.E.2d 692, 693 (1995) (quoting Craft v. Va. Emp't Comm'n, 8 Va. App. 607, 609, 383 S.E.2d 271, 273 (1989)) (internal quotation marks omitted). In evaluating the Commission's findings, the Court must "consider the evidence in the light most favorable to the finding by the Commission." Smith v. Va. Emp't Comm'n, 59 Va. App. 516, 519, 721 S.E.2d 18, 20 (2012).
ANALYSIS
The eligibility criteria for unemployment compensation states that "[a]n individual shall be disqualified for benefits . . . if the Commission finds such individual is unemployed because he left work voluntarily without good cause." Va. Code § 60.2-618(1) (2014 Repl. Vol.). Thus, in determining whether Alexander should be denied benefits, there are two issues the Court must evaluate: (1) whether Alexander left voluntarily rather than being discharged; and (2) if he did, whether Alexander left for good cause. The Commission determined that Alexander left voluntarily and without good cause, so the Court is tasked with reviewing the Commission's application of "the law de novo and the facts with the deference required by Code § 60.2-625(A)." Smith v. Va. Emp't Comm'n, 59 Va. App. 516, 520, 721 S.E.2d 18, 20 (2012).
1. Alexander Voluntarily Left His Employment at JAAM.
An employer bears the burden of showing that an employee voluntarily left his employment. Shuler v. Va. Emp't Comm'n, 9 Va. App. 147, 150, 384 S.E.2d 122, 124 (1989). "The term 'voluntary' connotes '[u]nconstrained by interference; unimpelled by another's influence; spontaneous; acting of oneself . . . [r]esulting from free choice.'" Id. (quoting Black's Law Dictionary 1413 (5th ed. 1979)).
Alexander has not alleged that the Commission committed fraud in deciding his case. The Commission's factual findings therefore are conclusive if supported by evidence contained in the record. Va. Code § 60.2-625(A). The Appeals Examiner found—and the Commission affirmed—that Alexander voluntarily departed before the end of his work shift on June 14, 2017, in anticipation of being discharged because he was a convicted felon. This factual finding is supported by Alexander's admission during the Appeals Examiner's hearing that he departed that day—with no intent to return—because he had a felony on his record. It is also supported by the signed statements of two of Alexander's former co-workers, both of whom stated that Alexander abandoned his shift and was not discharged.
The Court is not aware of any Virginia cases addressing what language or conduct constitutes a discharge. The Court notes, however, that Alexander testified during the Appeals Examiner's hearing that Mr. Patel told him on multiple occasions over the course of his employment—prior to June 14, 2017—that if he had felonies on his record he could not continue to work for JAAM. It defies logic that Alexander interpreted the June 14 statement as a termination notice but did not consider the previous statements by his employer to be notices of discharge. Alexander apparently chose not to abandon his employment after being informed of the policy in the past, and he returned to work after each of the prior notifications. Alexander similarly could have shown up for work on his next scheduled workday after June 14, at which time he would have been either discharged or allowed to continue his employment. Lacking any evidence that the words used on June 14, 2017, by Mr. Patel were substantially different than the words he used previously, it is unreasonable to believe Alexander viewed the June 14, 2017, statement as his discharge from employment.
Alexander's felony conviction predated his employment with JAAM, so any of his employer's prior statements would have been while he was a convicted felon.
The Court notes that had the Commission determined that Alexander was in fact discharged from his employment on June 14, Alexander may have still been disqualified for benefits on the basis of being discharged for misconduct. See Va . Code § 60.2-618(2) (2014 Repl. Vol.) ("An individual shall be disqualified for benefits upon separation from the last employing unit . . . if the Commission finds such individual is unemployed because he has been discharged for misconduct connected with his work."). That said, the Court is without any factual record to conclude—and no finding was made below—that Alexander would have been discharged for misconduct had he not voluntarily left. Of note, there are indications that Alexander likely lied on his JAAM employment application regarding his felon status. In the hearing before the Court, Alexander stated that Ms. Patel guided him through the application and instructed him to check "no" to the question about prior felonies. This Court lacks jurisdiction, however, to engage in additional fact finding. See Va . Code § 60.2-625(A) (2014 Repl. Vol.).
The Virginia Court of Appeals noted that the Commission has consistently held that "an employee's refusal to work out a notice period, after being informed of a future discharge, is a voluntary leaving or an intervening cause of unemployment." Shifflett v. Va. Emp't Comm'n, 14 Va. App. 96, 98, 414 S.E.2d 865, 866 (1992). In the instant case, Alexander was informed of his future discharge if a background checked revealed that he was a convicted felon. By voluntarily departing on June 14 and not returning to work despite the background check not yet having been conducted, Alexander's actions constituted an intervening cause of his own unemployment.
2. Alexander's Decision to Voluntarily Leave His Employment Was Not for Good Cause.
Because the facts support the Commission's conclusion that JAAM proved that Alexander left his job voluntarily, Alexander bore the burden of proving that his decision to leave was for good cause. See Actuarial Benefits & Design Corp. v. Va. Emp't Comm'n, 23 Va. App. 640, 645, 478 S.E.2d 735, 738 (1996). "The determination of what constitutes 'good cause' is a mixed question of law and fact, and therefore is subject to review on appeal." Umbarger v. Va. Emp't Comm'n, 12 Va. App. 431, 434, 404 S.E.2d 380, 383 (1991). The Commission has long interpreted "good cause" under section 60.2-618(1) of the Code of Virginia as requiring the following:
Before relinquishing his employment . . . the claimant must have made every effort to eliminate or adjust with his employer the differences or conditions of which he complains. He must take those steps that could be reasonably expected of a person desirous of retaining his employment before hazarding the risks of unemployment.Lee v. Va. Emp't Comm'n, 1 Va. App. 82, 85, 335 S.E.2d 104, 106 (1985). Further,
[w]hen determining whether good cause existed for a claimant to voluntarily leave employment, the commission and the 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 the employment. In making this two-part analysis, the claimant's claim must be viewed from the standpoint of a reasonable employee.Umbarger, 12 Va. App. at 435-36, 404 S.E.2d at 383. Put another way, "[t]o constitute 'good cause' for quitting, the employee must prove the employer created workplace conditions so intolerable that the employee 'had no reasonable alternative except to quit [his] job.'" Smith, 59 Va. App. at 521, 721 S.E.2d at 21 (2012) (quoting Umbarger, 12 Va. App. at 436, 404 S.E.2d at 383)).
Attempting to simplify this analysis, the Court of Appeals in Smith opined that "'good cause' under Code § 60.2-618(1) cannot be established by an employee who quits [his] job merely because [he] believes [he] will eventually be fired." 59 Va. App. at 521, 721 S.E.2d at 21. The court reasoned that "[i]n such cases, the employee — not the employer — causes the wage loss. Neither the [Commission] nor the courts should be asked to speculate when, if ever, the employee's prediction might have come to pass." Id.
In Cenname v. Virginia Employment Commission, the Virginia Court of Appeals cited Smith in support of the Commission's position regarding voluntarily relinquishing employment in anticipation of discharge. 2014 Va. App. LEXIS 37, at *6 (Feb. 11, 2014). "[T]he Commission has consistently held that anticipation of being discharged is not good cause for leaving a job." Id. (quoting Smith, 59 Va. App. at 519, 721 S.E.2d at 20).
The Court does not consider unpublished Court of Appeals opinions to hold precedential value. The Court instead considers the rationale offered by the Court of Appeals to the extent the Court finds it persuasive, which is permissible. See Va. Sup. Ct. R. 5A:1(f); Fairfax Cty. Sch. Bd. v. Rose, 29 Va. App. 32, 39 n.3, 509 S.E.2d 525, 528 n.3 (1999).
Cases where an individual leaves his work in anticipation of being discharged at some future date are not new to [the] Commission. In such cases the holdings have established the principle that an anticipated discharge is not a discharge in fact, and if the claimant elects to leave before the discharge actually occurs he does so voluntarily. The threat of discharge is sometimes used to warn or exhort an employee, but the threat is not tantamount to actual discharge.Id. (quoting Smith, 59 Va. App. at 519-20, 721 S.E.2d at 20).
The Court notes that, without such a policy, employees would be incentivized to voluntarily quit their employment upon realization of their impending discharge in order to receive unemployment benefits that they would not receive were they later terminated for misconduct. It appears contrary to the statutory scheme to allow a claimant to qualify for benefits by preempting his imminent termination for past misconduct. See Va . Code § 60.2-618(2) ("An individual shall be disqualified for benefits . . . if the Commission finds such individual is unemployed because he has been discharged for misconduct connected with his work.").
Even if this were not a case involving an anticipated termination, the circumstances surrounding Alexander's voluntary termination alone disqualify him from benefits. In "determining whether good cause exist[s] for a claimant to voluntarily leave employment," the Court looks to the two-step analysis announced in Umbarger: "first apply an objective standard to the reasonableness of the employment dispute and then [analyze] the reasonableness of the employee's efforts to resolve that dispute before leaving the employment." Umbarger, 12 Va. App. at 435-36, 404 S.E.2d at 383. The Court of Appeals applied this two-step analysis in Borden v. Virginia Employment Commission and Fairfax County, 2017 Va. App. LEXIS 123 (May 9, 2017). There, the claimant testified that when he voluntarily left his employment, he felt like management was preparing to fire him. Id. at *7. The Court of Appeals applied the Umbarger analysis and concluded that the claimant "did not reasonably try to resolve his dispute with his employer before he resigned." Id.
See supra note 4. --------
The "dispute" in this case, to the extent there is one, is the policy prohibiting felons from working on the Naval Station, which the Court does not view as being dispositive on the issue of whether the dispute is reasonable. In reviewing the second part of the analysis, however, the Commission found no evidence—nor does the Court—that Alexander made any effort to resolve the dispute. The Court notes that, at the very least, Alexander could have spoken with his employers to assess his options beyond simply leaving work voluntarily and never returning. Under the circumstances present in the instant case, the Court finds the facts—or lack thereof— sufficient for a finding that Alexander's leaving without expending any effort to resolve the dispute was unreasonable and therefore was not for good cause.
CONCLUSION
Based on the foregoing, the Court finds that the Commission's decision to disqualify Alexander from receiving unemployment benefits was based on sufficient evidence that he voluntarily terminated his employment without good cause. The Court therefore DENIES Alexander's Petition for Judicial Review and dismisses the case with prejudice.
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 3rd day of July, 2018.
/s/_________
David W. Lannetti
Circuit Court Judge