COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Overton 

Argued at Richmond, Virginia 

NAN S. VICK 

 MEMORANDUM OPINION* BY 

v. Record No. 0722-96-2 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 18, 1997 

VIRGINIA EMPLOYMENT COMMISSION, ET AL. 

FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY 

J. Warren Stephens, Judge Designate 

 Nan S. Vick, pro se. 

 Lisa J. Rowley, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellees. 

 Nan S. Vick (appellant) appeals a final order of the Circuit 

Court of Nottoway County affirming the decision of the Virginia 

Employment Commission (VEC) to disqualify her from receiving 

unemployment benefits for having voluntarily left work with 

Foote, Inc. (employer), without good cause. See Code 

§ 60.2-618(1).1

 This finding was initially rendered by a VEC 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 1Code § 60.2-618 provides, in part: 

 An individual shall be disqualified for 

benefits upon separation from the last 

employing unit for whom he has worked thirty 

days or from any subsequent employing unit: 

 1. For any week benefits are claimed 

until he has performed services for an 

employer during thirty days, whether or not 

such days are consecutive, and subsequently 

becomes totally or partially separated from 

such employment, if the Commission finds such 

individual is unemployed because he left work 
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(..continued) 

claims deputy. On appeal, evidence was taken before a VEC 

appeals examiner who affirmed the claims deputy. On further 

appeal, a VEC special examiner heard oral argument but took no 

further evidence; the special examiner affirmed the appeals 

examiner. The matter was then appealed to the circuit court. On 

appeal to this Court, appellant contends that (1) contrary to the 

ruling of the circuit court, the record does not support the 

VEC's findings of fact; (2) the VEC's findings were procured by 

fraud on the part of employer; (3) contrary to the ruling of the 

circuit court, the VEC erred as a matter of law in concluding 

appellant left work without good cause; and (4) the VEC special 

examiner erred in denying appellant's request to present 

additional evidence. We disagree and affirm. 

 "An individual shall be disqualified for [unemployment] 

benefits . . . if the commission finds such individual is 

unemployed because [she] left work voluntarily without good cause 

. . . ." Code § 60.2-618(1). 

 "[G]ood cause" . . . "has not been 

specifically defined by the legislature or 

the Supreme Court." However, the consistent 

view of the [VEC], "acquiesced in by the 

General Assembly," has required an employee 

voluntarily without good cause. As used in 

this chapter "good cause" shall not include 

(i) voluntarily leaving work with an employer 

to become self-employed, or (ii) voluntarily 

leaving work with an employer to accompany or 

to join his or her spouse in a new locality. 

An individual shall not be deemed to have 

voluntarily left work solely because the 

separation was in accordance with a 

seniority-based policy. 
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to "take those steps that could be reasonably 

expected of a person desirous of retaining 

his [or her] employment before hazarding the 

risks of unemployment." 

Virginia Employment Comm'n v. Fitzgerald, 19 Va. App. 491, 493, 

452 S.E.2d 692, 693 (1995) (citations omitted).2 Determination 

of "good cause" involves a two-part analysis. The VEC and 

reviewing courts must apply an objective standard, first to the 

reasonableness of the employment dispute and then to the 

reasonableness of the employee's efforts to resolve that dispute 

before leaving. Umbarger v. Virginia Employment Comm'n, 12 Va. 

App. 431, 435, 404 S.E.2d 380, 383 (1990). An employee may not 

rely upon his or her own "unreasonable and purely subjective 

perception" to justify voluntary unemployment. Id.

 The issue whether an employee voluntarily quit without good 

cause involves a mixed question of law and fact reviewable on 

appeal. Fitzgerald, 19 Va. App. at 493, 452 S.E.2d at 693. 

However, this Court must give deference to the VEC's findings of 

fact underlying its decision. Indeed, 

 [o]n review, [we] must consider the evidence 

in the light most favorable to the finding by 

the [VEC]. Code § 60.2-625 sets forth the 

standard of "judicial review" for appeals 

from the decisions of the VEC. "[I]n such 

cases . . . the [VEC's] findings of fact, if 

supported by evidence and in the absence of 

fraud, are conclusive." The VEC's findings 

 

 2In construing the meaning of the phrase "good cause," the 

VEC has limited it to those factors or circumstances which are so 

substantial, compelling and necessitous as would leave the 

claimant no other reasonable alternative to quitting. Phillips 

v. Dan River Mills, Inc., Commission Decision 2002-C (June 15, 

1955). 
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of fact need only be "supported by evidence" 

for them to be binding on appeal, unless we 

conclude that no evidence supports the 

findings or that they were obtained by fraud. 

Bell Atlantic v. Matthews, 16 Va. App. 741, 745, 433 S.E.2d 30, 

32 (1993) (citations omitted). 

I. VEC'S FACTUAL FINDINGS 

 We find evidence in the record to support the VEC's factual 

findings. 

 Appellant worked as a bookkeeper and secretary for employer, 

a retailer and wholesaler of tires and automotive services, from 

February 1991 until May 25, 1994. William C. Foote, general 

manager and part owner of employer, was appellant's supervisor. 

William F. Foote, the father of William C., was the residual 

owner but was disabled from working. David Williams was 

employer's service manager; he was not one of appellant's 

supervisors. 

 William C. and Williams testified that, during her tenure, 

appellant developed a poor attitude toward her coworkers and 

customers and was unable to get along with any of her coworkers. 

 In particular, Williams and appellant could not get along. 

Appellant attributed the conflict to Williams' sexual harassment 

of her. Williams, however, denied that he had sexually harassed 

appellant in any way. On cross-examination by appellant's 

counsel, Williams denied specific allegations of sexual 

harassment, including his exposing himself to appellant and his 

directing lewd comments at appellant or stating them in her 
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presence. William C. testified that the alleged incident of 

Williams exposing himself did not occur. Although William C. was 

aware of the conflict between appellant and Williams, he 

testified that he was unaware that it had anything to do with 

sexual harassment. He stated that appellant never complained of 

sexual harassment. 

 Employer had no written policy for resolving disputes among 

coworkers. William F. attempted to resolve the conflict between 

appellant and her coworkers. William C. admitted that he had 

directed Williams and appellant to work out their problems 

themselves. Appellant quit her job at least three times during 

the year prior to May 25, 1994 because of personality conflicts 

with other employees. Each time, she sought to be reinstated and 

employer allowed her to return. 

 Appellant quit because of the events of May 25, 1994. On 

that day, appellant took responsibility for a mistake Williams 

made and was then admonished by William C. for the manner in 

which she handled it. The unfairness of such treatment in 

appellant's eyes was compounded by the fact that she had 

undertaken Williams' work, an individual with whom she was in 

continual conflict. Although appellant's aggravation tempered 

and she continued to work, it was reignited when William C. 

referred to her as "Queenie" in front of a customer. At that 

point, appellant told William C. that she quit. 

 Appellant testified that William C. had called her "Queenie" 
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numerous times and that she had repeatedly asked that the verbal 

abuse stop. William C. denied both allegations. Appellant 

testified that she probably would have quit notwithstanding being 

yelled at and called "Queenie" by William C. She testified that 

it was unreasonable for employer to assume she would perform 

Williams' work duties, when she considered Williams to be 

sexually harassing her. She admitted, however, that she had 

previously completed similar tasks. After she quit, appellant 

again sought to be reinstated. This time, however, employer 

refused to rehire her. 

II. FINDINGS PROCURED BY FRAUD 

 Appellant contends that even if the record supports the 

VEC's findings, those findings are not conclusive because they 

were procured by fraud. The record shows that the issue of fraud 

was not raised in the circuit court. Appellant made no reference 

to fraud in her petition for judicial review, and the circuit 

court specifically found that "fraud has not been alleged." 

Accordingly, appellant's contention on appeal is procedurally 

barred. Rule 5A:18. 

III. "GOOD CAUSE" 

 We agree with the trial court that the VEC properly applied 

the law to its findings of fact. While the events of May 25 may 

have been a "reasonable employment dispute," the record shows 

that appellant took no measure, reasonable or otherwise, to 

resolve that dispute before leaving employment. Cf. Umbarger, 12 
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Va. App. at 437, 404 S.E.2d at 384. 

 Moreover, although appellant contends that the events of May 

25 were merely the end of a continuing pattern of sexual 

harassment, the record supports the VEC's finding that this was 

not the case. Most importantly, Williams denied any act of 

sexual harassment in general and specifically denied each of the 

acts appellant's counsel alleged. As trier of fact, the appeals 

examiner was entitled to credit Williams' testimony. Moreover, 

although William C. was aware of the conflict between appellant 

and Williams and did little if anything to resolve it, he was 

unaware that the conflict involved sexual harassment. While an 

ongoing pattern of sexual harassment would, we believe, clearly 

amount to a "reasonable employment dispute," the record here 

belies such a scenario. Rather, the record supports the finding 

that the only ongoing pattern of conflict was a personality 

dispute between Williams and appellant. We find that a 

personality dispute among coworkers, without more, is not a 

"reasonable employment dispute" amounting to "good cause" to quit 

voluntarily within the meaning of Code § 60.2-618(1).3

IV. SUPPLEMENTAL EVIDENCE 

 Finally, appellant contends the special examiner erred in 

failing to allow her to supplement the record taken before the 

 3The dissent's characterization of the "evidence proved" is 

an eloquent recitation of appellant's testimony. That testimony, 

however, was mostly contradicted. Well established principles of 

appellate review bind us to the VEC's determination that the 

events appellant described did not, in fact, transpire. 
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appeals examiner with additional evidence. However, appellant 

failed to raise this contention before the circuit court. 

Accordingly, her appellate argument is procedurally barred. Rule 

5A:18. Moreover, based on appellant's representations the 

special examiner determined that each piece of additional 

evidence appellant sought to present could have been presented at 

the hearing before the appeals examiner through the exercise of 

due diligence. 

 For the foregoing reasons, the decision of the commission is 

affirmed. 

Affirmed.
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Benton, J., dissenting. 

 The evidence proved that Nan S. Vick was the only female 

employee at a business that sells, retail and wholesale, tires 

and automotive services. She was a full-time bookkeeper and 

secretary. The general manager testified that her job 

performance was good. 

 Over a period of years, Vick experienced difficulties with 

other employees of the business. Vick attributed many of those 

difficulties to instances of sexual harassment. The evidence 

proved that when Vick complained to the general manager of 

problems with employees, he informed Vick and the employees about 

whom she complained that they would have to resolve those 

disputes among themselves. At the evidentiary hearing the 

general manager testified that Vick's problems with the employees 

were "personality conflicts." Although he was unable to recall 

the nature of those disputes, he testified that she had made no 

complaints of sexual harassment. 

 Although the general manager denied that Vick was sexually 

harassed, the evidence proved facts to the contrary. The 

evidence proved that Vick quit her employment on four previous 

occasions because of incidents that she believed to be 

intolerable harassment. The evidence also proved that the 

business re-employed Vick on each of those occasions. Although 

the evidence does not contain specific details of each of the 

incidents that gave rise to her quitting, the evidence does 
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establish that on one occasion Vick quit because of lewd remarks 

and harassment from an employee. The evidence further proved 

that the general manager rehired her and required the other 

employee to apologize to Vick for lewd comments that the employee 

made to Vick. 

 The evidence also established that Vick quit her employment 

on another occasion because of offensive comments and conduct by 

the service manager. Vick was rehired on that occasion. 

 The evidence also proved that a calendar of offensive 

photographs of women was hanging in a work area under the control 

of the service manager. The calendar was only removed after a 

female customer of the business complained. 

 In addition, Vick complained to the general manager that the 

service manager exposed his buttocks to her in her office. The 

general manager, who was in the vicinity when that incident 

occurred, testified that the service manager was a large man and 

that his shirt became untucked when he bent over to pick up an 

item. The service manager testified that when he went into the 

office to retrieve an item, his shirt became untucked and his 

"butt was showing." Vick complained when the incident occurred. 

 However, the service manager told her that if she had not looked 

she would not have seen it. The general manager deemed this 

matter to be a "personality dispute." Vick filed a criminal 

complaint charging that the service manager indecently exposed 

himself. 
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 These events add to the context of Vick's decision to quit 

her employment on May 25 when the general manager, Vick's 

immediate supervisor and an owner of the business, referred to 

her as "Queenie" in the presence of a customer. The evidence is 

undisputed that the service manager had failed to prepare an 

invoice on that day that Vick needed to complete other documents. 

 Without those documents the customer would be unable to obtain 

his vehicle. When the customer arrived, the service manager was 

away from the business. Because Vick did not have the necessary 

paperwork from the service manager, she went to the general 

manager to obtain prices to prepare the invoice. At the 

evidentiary hearing, the general manager agreed that the problem 

that Vick was encountering with the customer in her office 

occurred because of the service manager's lack of attention. 

 When Vick obtained the information and returned, the 

customer expressed dissatisfaction with the quality of the work 

and began to complain. Vick again sought the general manager. 

The testimony is disputed about the discourse that occurred 

between Vick and the general manager. The general manager 

testified that Vick inappropriately interfered while he was 

talking to customers. Vick testified that she politely sought to 

inform the general manager of her need to have his attention to 

resolve the ongoing problem with an irate customer. 

 The general manager testified that when he entered Vick's 

office he admonished Vick for the way she had approached him 
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while he was talking to a customer. Vick testified that the 

general manager yelled at her and addressed her derogatorily as 

"Queenie" in the presence of customers. Vick became upset and 

later that day quit her employment. 

 Vick testified that the general manager had called her 

"Queenie" on other occasions and she had asked that he not 

verbally abuse her. The general manager testified that he had 

never before used that term in addressing Vick and that Vick had 

never complained about his use of that term in the past. He 

further testified regarding the term as follows: 

 I don't distinctly remember calling her 

Queenie that day. [B]ut . . . it's possible. 

 It's not a term, it's a term that I, that's 

used in my family as, a jokingly term, not a 

term that's meant to hurt or anything like 

that. . . . [I]f it did in fact hurt her I 

apologize for it. 

 The commission in its findings of fact stated as follows: 

 On the claimant's last day of work, May 25, 

1994, the employer was shorthanded and the 

claimant had to deal with customers. At 

least one customer was upset with the work 

performed and the claimant attempted to bring 

this to the attention of the [general 

manager]. At the same time, the claimant was 

required to prepare invoices for work 

performed. This is normally handled by the 

service manager. However, the service 

manager was not at work at this time. During 

the course of this situation, the [general 

manager] referred to the claimant as 

"Queenie" in front of a customer. The 

[general manager] had referred to the 

claimant in this way on a few occasions in 

the past. The claimant had never complained 

to the employer concerning this term. 

 On the claimant's last day, she was advised 

that she had to finish some work before she 
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could go on vacation. She was upset with 

this situation and was also upset because she 

felt she was being forced to do the work of 

another employee during his absence. 

 In the past year, the claimant and the 

[service manager] were having difficulties 

getting along. The [general manager] advised 

the claimant and the other employee that they 

would have to work out these difficulties on 

their own. 

 In the past several months, the claimant had 

quit on at least three occasions. After each 

of these separations, the claimant went back 

to work for the employer. 

 The determination of what constitutes "good cause" is a 

mixed question of law and fact reviewable by this Court on 

appeal. See Johnson v. Virginia Employment Comm'n, 8 Va. App. 

441, 447, 382 S.E.2d 476, 478 (1989). "Factors that . . . are 

peculiar to the employee and her situation are factors which are 

appropriately considered as to whether good cause existed." 

Johnson, 8 Va. App. at 451, 382 S.E.2d at 481. 

 The purpose of the [Unemployment 

Compensation] Act is to "provide temporary 

financial assistance to [workers] who 

[become] unemployed without fault on their 

part. The statute as a whole . . . should be 

so interpreted as to effectuate that remedial 

purpose implicit in its enactment." 

Israel v. Virginia Employment Comm'n, 7 Va. App. 169, 172, 372 

S.E.2d 207, 209 (1988). On this evidence, I would hold that the 

evidence does not support the commission's conclusion that Vick 

"left work voluntarily without good cause." Code § 60.2-618(1). 

 The record supports Vick's reasonable belief that she was 

being harassed and that her employer was unresponsive to her 
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complaints. Indeed, when the other owner of the business was 

asked what the procedure for resolving the conflicts was, he 

stated, "Very rarely did I get into that. That was handled 

primarily by [the general manager] . . . I asked [the service 

manager] to bear with the situation. I asked [Vick] several 

times to lighten up . . . try smiling." In addition, when the 

service manager was asked why the conflicts remained unsolved, he 

testified that "Mrs. Vick would constantly just come up with 

something else, a trifling event that she would blow out of 

proportion." The record graphically demonstrates that Vick was 

consistently harassed by employees and, when she complained, was 

told to work out those problems without any intervention by the 

general manager. She was subject to lewd and offensive remarks 

by employees and gained no relief from the general manager. Only 

after she quit her job did the general manager take action. When 

she was rehired, the offending employee was required to 

apologize. Even when the service manager exposed his "butt" to 

her, and she reported the matter to the general manager who was 

present, no action was taken. Despite the service manager's 

retort, the general manager took no action and did not recognize 

these to be instances of harassment. 

 Thus, the evidence proved that Vick did not have "the 

benefit of an established, designated procedure for addressing 

employee grievances." Umbarger v. Virginia Employment Comm'n, 12 

Va. App. 431, 437, 404 S.E.2d 380, 384 (1991). When Vick 
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complained in the past the general manager instructed her to 

resolve the problem without his intervention. Quitting was the 

only recourse through which she was able to obtain relief. 

 Furthermore, the general manager acknowledged that he was 

familiar with the term "Queenie" and used it in a joking manner 

in his personal life. Moreover, the commission found as a fact 

that the general manager referred to Vick in that manner on May 

25 in the presence of a customer. It was an offensive remark, 

made in a circumstance to cause humiliation and embarrassment to 

Vick. The record proves that she had no recourse for correcting 

the conduct. The majority states that "[w]hile the events of May 

25 may have been a 'reasonable employment dispute,' the record 

shows that [Vick] took no measure, reasonable or otherwise, to 

resolve that dispute before leaving employment." Given the 

employer's past refusals to intervene and the fact that, this 

time, her dispute was with her direct supervisor, I would hold 

that Vick reasonably concluded that no avenues were available to 

her to utilize in resolving this dispute. 

 For these reasons, I would hold that Vick's leaving was for 

good cause and that she is not therefore barred from receiving 

unemployment benefits.