Opinion
Record No. 0836-92-3
February 2, 1993
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
(Essic G. Hairston, on brief), for appellant.
(Mary Sue Terry, Attorney General; Patricia H. Quillen, Assistant Attorney General; on brief), for appellee Virginia Employment Commission.
No brief for appellee V. M. Draper Manufacturing, Inc.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we find that this appeal is without merit. Accordingly, we affirm the final order of the Circuit Court of the City of Martinsville entered on March 26, 1992.
The sole issue on this appeal is whether the Circuit Court of the City of Martinsville erred in affirming the decision of the Virginia Employment Commission (VEC) which denied Nashid H. Muhammad's request to reopen the Appeals Examiner's hearing.
Muhammad was employed by V.M. Draper Manufacturing, Inc. from May 15, 1990 until December 10, 1990 as a chop saw operator. On December 10, 1990 he was terminated from his employment due to drinking alcohol on the job. Muhammed applied for unemployment compensation benefits on December 11, 1990.
The Claims Deputy disqualified Muhammad from receiving benefits on the basis that he was terminated due to his own work-related misconduct. Muhammad appealed the Claims Deputy's determination. VEC records reflect that a Notice of Appeal Hearing, dated February 5, 1991, scheduling the appeal hearing for February 19, 1991, was sent to Muhammad and to the employer.
On February 19, 1991, a hearing was held before an Appeals Examiner. Muhammad failed to attend the hearing. The employer's representative attended the hearing and provided evidence through two witnesses. The Claims Deputy's determination was affirmed by the Appeals Examiner. On February 26, 1991, through his representative, Muhammad appealed this holding. The letter of appeal from Muhammad's representative indicated that neither she nor Muhammad received notice of the February 19, 1991 hearing. The representative requested that the Appeals Examiner's hearing be reopened.
On March 5, 1991, Special Examiner Willie C. Thompson wrote to Muhammad's representative in response to her February 26, 1991 letter. Special Examiner Thompson stated that it would be Muhammad's burden to show that there is good cause to reopen the hearing under VEC Regulation VR 300-01-4.2I. Special Examiner Thompson stated that he did not have sufficient information to decide if the hearing should be reopened. Therefore, he stated that a hearing before the commission would be scheduled for March 27, 1991 for the purpose of taking testimony and evidence concerning the reopening issue.
In his letter of March 5, 1991, Special Examiner Thompson specifically instructed Muhammad's representative that an affidavit could be submitted in lieu of attending the hearing in Richmond. Pursuant to Special Examiner Thompson's instructions, "[t]he affidavit should contain a detailed, specific explanation regarding (1) why the claimant did not attend the Appeals Examiner's hearing and, (2) what steps he took to try and have the hearing re-scheduled once he realized that he had missed it. He must sign the affidavit in the presence of a Notary Public or some other official authorized to administer oaths . . . , certifying under oath or affirmation that everything contained in the affidavit is true to the best of his knowledge and belief." (Emphasis added.)
Special Examiner Thompson also enclosed a copy of the hearing notice which contained a section on "Affidavits." This information specifically stated that "[a]ffidavits may not have as much weight as testimony under oath."
By letter dated March 8, 1991, Muhammad's representative stated that neither she nor Muhammad had ever received notice of the February 19, 1991 hearing and requested that the hearing be reopened. Her signature was notarized by a notary public.
By opinion dated April 11, 1991, the VEC found that Muhammad had not established good cause for reopening the Appeals Examiner's hearing on the grounds that Muhammad failed to present direct, sworn testimony, or testimony by way of affidavit. The VEC did not consider the representative's affidavit because it was based on hearsay and not signed by Muhammad as instructed by the Special Examiner. Muhammad appealed the VEC's decision to the Circuit Court of the City of Martinsville. The circuit court affirmed the VEC's decision.
"The findings of the VEC 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.'" Virginia Employment Comm'n v. Thomas Regional Directory, Inc., 13 Va. App. 610, 613, 414 S.E.2d 412, 415 (1992) (quoting Code § 60.2-500(B)(1)).
We find that the VEC's decision was not contrary to its Rules and Regulations and is supported by credible evidence. VR 300-01-4.2I provided the commission discretion to schedule a hearing on the issue of reopening. Special Examiner Thompson specifically instructed that if an affidavit was to be submitted in lieu of direct testimony, it must be signed byMuhammad in the presence of a notary public, certifying under oath that everything contained in the affidavit was true to the best of his knowledge. Muhammad failed to submit such an affidavit, and instead, submitted a notarized letter from his representative containing hearsay statements. Moreover, Muhammad did not attend the scheduled hearing to present direct testimony.
Based on this record we cannot say that the VEC erred as a matter of law in finding that Muhammad failed to meet his burden of proving good cause for reopening the hearing. The commission was entitled not to consider the hearsay affidavit of Muhammad's representative, as it is within the commission's discretion, not the court's, to determine the probative weight, if any, to be given to hearsay evidence. See American Furniture Co. v. Graves, 141 Va. 1, 16, 126 S.E. 213, 217 (1925).
For the reasons stated, we affirm the final order of the Circuit Court of the City of Martinsville.
Affirmed.