Opinion
CL-2010-10475
11-02-2010
Singh v. Virginia Employment Commission, et al
Robert Wilson, Esquire Counsel for Petitioner Morunder Singh Elizabeth B. Peay, Esquire ASSISTANT ATTORNEY GENERAL-I Counsel for Virginia Employment Commission
DENNIS J. SMITH, CHIEF JUDGE
MARCUS D. WILLIAMS
JANE MARUM ROUSH
LESLIE M. ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L. BRODIE
LORRAINE NORDLUND
BRETT A. KASSABIAN
MICHAEL F. DEVINE
JUDGES
BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A. FORTKORT
RICHARD J. JAMBORSKY
JACK B. STEVENS
J. HOWE BROWN
F. BRUCE BACH
M. LANGHORNE KEITH
ARTHUR B. VI eregg
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE, JR.
MICHAEL P. McWEENY
GAYLORD L. FINCH, JR.
STANLEY P. KLEIN
RETIRED JUDGES
November 2, 2010
Dear Counsel:
This matter came before the Court on October 22, 2010 on the appeal of Petitioner, Mohinder Singh ("Singh"), of the Virginia Unemployment Commission's ("Commission") determination that he was dismissed for misconduct, which resulted in his ineligibility for unemployment compensation. On appeal, Singh argues that his repeated failures of restaurant inspections did not rise to the level of misconduct required under Virginia Code § 60.2-618(2)(a). At the conclusion of the hearing, the matter was taken under advisement. For the following reasons, the Commission's decision is affirmed.
Background
The standard of review for findings of the Commission is that "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." Va. Code § 60.2-625. "As the factfinder, the commission is charged with the responsibility of resolving questions of credibility and of controverted facts." Va. Employment Comm'n v. Gantt, 7 Va. App. 631, 635, 376 S.E.2d 808, 811 (1989). Thus, "factual findings of the Commission are binding in judicial proceedings only when 'supported by evidence.'" Branch v. Va. Employment Comm'n, 219 Va. 609, 613, 249 S.E.2d 180, 183 (1978) (citations omitted). A finding of misconduct "is a mixed question of law and fact." See Helmick v. Martinsville-Henry County Economic Development Corp., 14 Va. App. 853, 855, 421 S.E.2d 23, 24 (1992) (quoting Israel v. Va. Employment Comm'n, 7 Va. App. 169, 172, 372 S.E.2d 207, 209 (1988)).
On the other hand, the Commission's legal determinations are not binding on this Court, but rather, the Commission's legal determinations are entitled to "great weight." Shifflett v. Va. Employment Comm 'n, 14 Va. App. 96, 98, 414 S.E.2d 865, 866 (1992). As stated in Shifflett, "[i]t is well settled that where the construction of a statute has been uniform for many years in administrative practice, and has been acquiesced in by the General Assembly, such construction is entitled to great weight with the courts." Id. (quoting Dan River Mills, Inc. v. Unemployment Compensation Comm'n, 195 Va. 997, 1002, 81 S.E.2d 620, 623 (1954)). Therefore, the Court examines the record to determine if there is credible evidence supporting the Commission's factual findings and examines the Commission's legal determinations granting the Commission's interpretation of the law great weight. "With the standard of review firmly in mind, the Court examines the Commission's findings.
The record on appeal and the Commission's findings show that from November 2006 to November 2009 Singh was employed as a general manager of a Pizza Hut Restaurant owned and operated by ADF Pizza 1, LLC a subsidiary of Yum Brands. (R. at 119.) As Singh's own characterization of the facts indicates, ADF fired Singh after four failed food safety inspections conducted in 2009 on April 8, September 23, October 9, and October 29. (See R. at 119-20; Petr.'s Br. 3.) Further, the restaurant was closed on March 29, 2009 due to rodent activity. (R. at 119.) Finally, a state health inspector observed two violations during an inspection of the restaurant on September 22, 2009. (R. at 119.)
These inspections and failures do not stand alone as grounds cited by the Commission, since Singh received multiple written warnings from his employer. (See R. at 119-20.) On May 3, 2009, Singh received a written warning resulting from the rodent activity on March 20, (R. at 119.) Singh received a written warning on May 4 for insubordination and lack of accountability for his restaurant. (R. at 119.) On October 6, Singh received another warning, which also informed Mm that an inspection would occur at the restaurant later in the week (the October 9 inspection) and then again in two weeks (the October 29 inspection). (R. at 119-20.) Thus, Singh, despite knowledge that the October inspections were coming and certain knowledge that his job was in jeopardy from previous failures to act, still failed to take appropriate action, and the restaurant failed the subsequent inspections.
Singh received many warnings, failed a state inspection, and failed four other inspections. Furthermore, due to the warning Singh received on May 4, he was aware that these violations constituted and were considered to be acts of insubordination and not simply acts of carelessness or negligence.
Turning to the details of the company policy and the reasons for the failed inspections, the Commission pointed out that Singh failed inspections for reasons including: dirty fryer resulting from a lack of regular cleaning, failure to maintain training materials and logs, failure to properly train and monitor employee hand-washing procedures, failure to observe and prevent cross-contamination of food, failure to properly calibrate thermometers, failure to maintain cleanliness in the restaurant, failure to assure that food was stored in proper locations, failure to assure that chemical containers were properly labeled and that pest control devices were set. (See R. at 120.) The Commission found that the majority of the deficiencies were within Singh's area of control and responsibility:
The substantial majority of deficiencies noted during the inspections were problems that were within the claimant's area of responsibility and were within his control to correct. The claimant's failure to correct repeated deficiencies demonstrates a recurrent pattern of willful disregard of the interests and duties he owed to the employer. Accordingly, the employer has borne the burden of proof to show .. . misconduct . . . .(R. at 122.)
The Commission also found that Yum Brands has a policy that "four failed restaurant inspections within a one-year period will result in discharge of the manger." (R. at 119.) "A finding of more than ten deviations, or more than one critical food safety deviation results in an 'unreliable' (failing) score." (R. at 119.) Further, Yum Brands employs an independent inspection company to ensure its rules and standards are met. (R. at 119.) The results of the various inspections are: on April 8 there were 12 deviations; on September 23 there were 13 deviations; on October 9 there were 26 deviations; and on October 23 there were 31 deviations. (R. at 119-20.) Thus, the Commission affirmed the denial of benefits based on misconduct because it found that the repeated deficiencies evinced a recurrent pattern of willful disregard of company policies constituting misconduct.
The failed state health inspection is not considered among the violations because only the inspections performed by Yum Brands' independent inspection company are relevant to the company policy.
Arguments
Singh argues that the finding of misconduct is a mixed question of law and fact, which means that whether the actual conduct should be defined as misconduct is a legal question subject to review by this Court. Thus, Singh does not argue the facts and the factual basis for the Commission's finding but rather whether the conduct actually constitutes misconduct under the law. At oral argument, counsel for Singh argued that this conduct was mere negligence—even incompetence—but not misconduct. Singh farther argues that the employer's testimony supports this view, that Singh's violations were negligent and careless as opposed to willful or deliberate, which shows this was not misconduct.
The Commission responds that the factual findings support the Commission's determination that Singh was fired for misconduct and that he is not entitled to benefits. Further, the Commission points out the deferential standard of review, which gives the Commission's interpretations of the law great weight.
Analysis
Virginia Code § 60.2-618(2)(a) provides that an individual is disqualified for benefits upon separation from his or her last employer "if the Commission finds such individual is unemployed because he has been discharged for misconduct connected with his work." In Branch, the Virginia Supreme Court interpreted the meaning of misconduct:
In our view, an employee is guilty of "misconduct connected with his work" when he deliberately violates a company rule reasonably designed to protect the legitimate business 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 his employer. Absent circumstances in 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 (citations omitted, emphasis added); see also Gantt, 7 Va. App. at 634, 376 .E.2d at 810. Thus, misconduct requires a finding of either (1) a deliberate violation of a company rule that is reasonably designed to protect the legitimate business interests of the employer or (2) acts or omissions by the employee that—based on nature or frequency—show a willful disregard for the duties owed the employer. See id.
On appeal, Singh did not address mitigating circumstances, so the issue before the Court only pertains to the finding of misconduct. Further, Singh relied heavily on Borbas v. Virginia. Employment Commission, 17 Va App. 720, 440 S.E.2d 630 (1994), alleging that here, just as in Borbas, the violations were mere negligence.
In Borbas, a correctional officer was dismissed for misconduct after receiving three citations for failing to follow the standards of conduct and policies designed to ensure prison security. 17 Va. App. at 721, 440 S.E.2d at 630-31. In the first violation, the officer, while in the control room, opened the door to a stairwell, which allowed a group of unescorted inmates into a hallway. Id. at 721, 440 S.E.2d at 631. In the second violation, the officer failed to lock the door to the control booth when leaving it. Id. And lastly, the officer opened an occupied cell from the control booth instead of opening the door to the unoccupied cell. Id After quoting the Branch standard, the Court of Appeals stated:
Although it certainly may justify an employee's discharge, behavior which is involuntary, unintentional or the product of simple negligence does not rise to the level necessary to justify a denial of unemployment benefits. The statutory term "misconduct" should not be so literally construed as to effect a forfeiture of benefits by an employee except in clear instances; rather, the term should be construed in a manner least favorable to working a forfeiture so as to minimize the penal character of the provision by excluding cases not clearly intended to be within the exception.Id. at 722, 440 S.E.2d at 631 (internal citations and quotation marks omitted). In the case before it, the court found that:
[T]here was simply no evidence that appellant's acts were volitional, and none of the reprimands involved the same behavior. Although all three incidents involved breaches of prison security, appellant violated three otherwise unrelated procedures. Finally, the record contains no evidence that appellant ever demonstrated an ability to perform her job satisfactorily. Absent a period of adequate job performance prior to appellant's breaches of security, we simply cannot conclude . . . that her "acts or omissions [were] of such a nature or so recurrent as to manifest a willful disregard of those interests and the duties and obligations [she] owed [her] employer."Id. at 723-24, 440 S.E.2d at 632. Thus, the court held that "appellant's acts constituted negligence at most, not the misconduct necessary to justify a denial of benefits." Id. at 724, 440 S.E.2d 632.
In contrast to Borbas, the Court of Appeals decided Helmick v. Martinsville-Henry County Economic Development Corp. less than two years earlier. In Helmick, the employee "repeatedly refused to follow the reasonable instructions of her employer" by not preparing reports, not sending out memoranda as directed, and writing a memorandum to the board in direct contravention to her employer's directions. 14 Va. App. at 859, 421 S.E.2d at 26-27. The court held that "these incidents, when viewed together, constitute a willful and deliberate course of conduct evincing a disregard of the employer's interests and [the employee's] duties and obligations to her employer." Id. at 859-60, 421 S.E.2d at 27. The court went on to state that the employee's misconduct "consisted of numerous unrelated incidents which together evinced a disregard of her employer's interest and her duties and obligations to her employer." Id. at 860-61, 421 S.E.2d at 27.
About a year before Helmick, the Court of Appeals decided Robinson v. Hurst Harvey Oil, Inc., 12 Va. App. 936, 407 S.E.2d 352, (1991), in which the court determined that the employee was dismissed for misconduct. Id at 939, 407 S.E.2d at 354. The employee worked at a convenience store and admitted eating about six dollars worth of the employer's food each week without paying for the food. Id at 938, 407 S.E.2d at 353. This was in violation of a written policy of which the employee was familiar. Id. at 939, 407 S.E.2d at 354. The court stated that "[a] continuing recurrence of . . . violations over a period of time clearly establishes . . . a deliberate and willful misconduct" Id. at 940, 407 S.E.2d at 354 (quoting 76 Am. Jur. 2d Unemployment Compensation § 52 (1975)). The court found that the employee's acts were misconduct, but that there were mitigating circumstances. See id
In the case before this Court, Singh's conduct is like that in Helmick and Robinson as opposed to Borbas. Here, Singh failed four restaurant inspections in a short period of time, and the inspections were failed for violations related to cleanliness and food safety. More specifically, the Commission found that failing to maintain cleanliness standards constituted several of the deficiencies in the April 8, October 9, and October 23 inspections.(See R. at 119-20.) Further, cross-contamination was an issue in both the October 9 and October 23 inspections. (R. at 120.) Additionally, Singh received written warnings including one that informed him his conduct constituted insubordination. (R. at 119.) Finally, Singh knew the final two inspections were coming but failed to take sufficient action to pass the inspections. (R. at 119-20.) Thus, these facts are similar to Helmick, where the employee "repeatedly refused to follow the reasonable instructions of her employer," 14 Va. App. at 859, 421 S.E,2d at 26-27, and Robinson, where continuing violations over a period of time clearly established deliberate, willful misconduct, 12 Va. App. at 940, 407 S.E.2d at 354.
As in Helmick, the directions given to Singh were reasonable—he was simply instructed to keep the restaurant clean as this was part of his job duties—and he repeatedly failed to do so. These numerous incidents, taken together, show a disregard of the employer's interests and Singh's obligations to his employer.
As in Robinson, Singh violated a written policy with which he was familiar and his multiple violations of the policy were similar. Singh's employer had a rule that "four failed restaurant inspections within a one-year period will result in discharge of the manger." (R. at 119.) The rules further defined a violation as more than ten deviations. (R. at 119.) Singh violated the same rule regarding inspection deviations four times by having more than ten deviations in each inspection. The October 9 inspection had 26 deviations and the October 23 inspection had 31 deviations (R. at 120)—numbers inconsistent with neglect but wholly consistent with deliberate, willful disregard of the duties owed the employer. Thus, Singh violated a familiar rule in a consistent manner multiple times, just as the employee in Robinson did.
Unlike Borbas where "none of the reprimands involved the same behavior," 17 Va App. at 723-24, 440 S.E.2d at 632, Singh failed to maintain the cleanliness standards of his restaurant on multiple occasions. These violations were related and similar. As a further distinguishing feature, the conduct in Borbas was not seen as "volitional," Id. However, in the instant case, it is a reasonable conclusion that Singh's actions were volitional considering that he had prior notice of the final two inspections but those inspections both found an increase in deviations and violations. (See R. at 120.) Thus, Borbas is distinguishable and does not control the case at bar.
Conclusion
Based on the Cornmission's factual findings of various warnings and repeated failures involving the same type of behavior, which actually became more egregious, the Commission's decision that Singh was discharged for misconduct due to "a recurrent pattern of willful disregard of the interests and duties he owed to the employer" is affirmed.
Ms. Peay is directed to prepare an order consistent with this opinion and forward it to Mr. Wilson for endorsement and subsequent forwarding to the Court for entry or the parties shall appear to present the order on November 12, 2010.
Very truly, Circuit Court Judge
_______________________________________________