COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner 

Argued at Salem, Virginia 

CAROLINE SWORD 

 MEMORANDUM OPINION* BY 

v. Record No. 1373-98-3 JUDGE JERE M. H. WILLIS, JR. 

 APRIL 6, 1999 

AUTOMOTIVE INDUSTRIES, INC. 

and 

VIRGINIA EMPLOYMENT COMMISSION 

FROM THE CIRCUIT COURT OF RUSSELL COUNTY 

Donald A. McGlothlin, Jr., Judge 

 William B. Harper, II (Client Centered Legal 

Services of Southwest Virginia, Inc., on 

briefs), for appellant. 

 James W. Osborne, Assistant Attorney General 

(Mark L. Earley, Attorney General; William A. 

Diamond, Assistant Attorney General; Lisa J. 

Rowley, Assistant Attorney General, on brief), 

for appellee Virginia Employment Commission. 

No brief or argument for appellee Automotive 

Industries, Inc. 

 

 *

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

this opinion is not designated for publication. 

 On appeal from a final judgment affirming the decision of 

the Virginia Employment Commission denying her unemployment 

compensation benefits, Caroline Sword contends (1) that the trial 

court erred in holding that she lacked good cause to refuse the 

offer of work, and (2) that the trial court abused its discretion 

by considering whether she had been discharged for misconduct. 

We find no error and affirm the judgment of the trial court. 
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I. Background

Automotive Industries, Inc., (“Automotive”) employed Sword 

as a production worker from October 24, 1994 through June 16, 

1995. On June 16, 1995, she was discharged and began receiving 

unemployment benefits. On July 13, 1995, Automotive offered 

Sword her previous job at the same rate of pay, $6.65 an hour. 

She refused the offer and was denied further benefits, pursuant 

to Code § 60.2-618(3). She appealed. The appeals examiner ruled 

that she was entitled to resumed benefits. Automotive appealed. 

On behalf of the Commission, a special examiner reversed the 

appeals examiner’s ruling. The trial court affirmed the 

Commission’s decision and held that Sword was ineligible for 

benefits. 

 Under Code § 60.2-625(A), “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.” Code § 60.2-625(A). 

“The [Commission’s] findings may be rejected only if, in 

considering the record as a whole, a reasonable mind would 

necessarily come to a different conclusion.” Craft v. Virginia 

Employment Commission, 8 Va. App. 607, 609, 383 S.E.2d 271, 273 

(1989). Sword does not contend that the job offered was 

unsuitable. The only issue before us is the Commission’s 

determination that Sword lacked good cause to refuse the job. 

This issue contains “mixed questions of law and fact reviewable 

by this court on appeal.” Johnson v. Virginia Employment 

Commission, 8 Va. App. 441, 447, 382 S.E.2d 476, 478 (1989). 
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II. Whether Sword Had Good Cause to Refuse Employment

 Sword argues that the conditions placed upon the job offer 

by Automotive were punitive and would have forced her into a 

position less favorable than that of a newly hired employee. 

 The position offered was the same job Sword had held 

previously, during the same shift and for the same rate of pay. 

Sword would, however, lose her seniority, would have no accrued 

vacation time, would be required to work all mandatory overtime, 

and could miss no days of work for sixty days, except for 

absences due to jury duty, death of her spouse, or a job-related 

injury. At the end of sixty days, she would have accrued three 

vacation days. 

 When Automotive made the job offer, Sword asked to report 

late the first day of work, in order to attend the reading of a 

will. Automotive refused this request, and Sword rejected the 

job offer. Sword contends that she refused the job because she 

would lose all seniority and because she was unhappy about the 

handling of her last paycheck. However, she discussed neither 

concern when she was offered the job, nor did she state these 

reasons for refusal prior to the hearings before the Commission. 

Sword “has the burden to show that good cause exists for her 

refusal to accept suitable employment, and she must put forward 

real and substantial reasons for her refusal.” Johnson, 8 Va. 

App. at 452, 382 S.E.2d at 481 (citation omitted). The record 

supports the finding that Sword did not carry this burden. The 

job offered the same type of work, at the same shift and at the 

same rate of pay. Evidence showed that the average wage for an 
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entry level production worker at local facilities was $6.00 per 

hour, less than the wage offered Sword. Sword did not prove that 

the sixty days probation and the loss of seniority were punitive 

conditions. She failed to establish “real and substantial” 

reasons for her refusal of the job offer. 

III. Whether the Trial Court Improperly Inquired Into 

Misconduct

 Sword next contends that the trial court improperly inquired 

into the reasons behind her initial discharge. She argues that 

she had not been discharged for misconduct and that the trial 

court was limited to the findings of the appeals examiner. She 

mischaracterizes the findings of the trial court and its 

consideration of her original discharge. 

 Within the appeals process before the Commission, each 

hearing is de novo, and the Commission may “affirm, modify, or 

set aside any decision of [the appeals examiner].” Code 

§ 60.2-622. The final fact finder within the Commission was the 

special examiner, and the trial court correctly accepted the 

special examiner’s findings of fact that were supported by the 

record. The record supports the special examiner’s finding that 

Sword was discharged “for violating the employer’s attendance 

policy.” 

 Inquiry into the cause of Sword’s dismissal was relevant in 

determining whether she had good cause to refuse the conditional 

offer of employment. “Factors that do not directly affect a 

job’s suitability but rather are peculiar to the employee and her 

situation are factors which are appropriately considered as to 

whether good cause existed to refuse suitable employment.” 
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Johnson, 8 Va. App. at 451, 382 S.E.2d at 481. The fact that 

Sword had been disciplined for excessive absenteeism explained 

the employer’s conditions. Nothing in the record suggests that 

either the Commission or the trial court determined that Sword’s 

discharge was due to misconduct as defined under Code 

§ 60.2-618(2). 

The record supports the finding that Sword lacked good cause 

to refuse the employer’s offer of employment. The conditions 

placed on her employment were not punitive, but remedial. 

Consideration of Sword’s excessive absenteeism prior to her 

dismissal was proper, because her absenteeism explained and 

justified the terms of the new employment offer. 

We affirm the judgment of the trial court. 

Affirmed.