COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Humphreys Argued at Salem, Virginia

JENNIFER G. FRANCIS OPINION BY v. Record No. 0827

- 11

- 3 JUDGE ROBERT J. HUMPHREYS NOVEMBER 29, 2011 VIRGINIA EMPLOYMENT COMMISSION AND

WAL MART ASSO CIATES, INC.

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY John T. Cook , Judge Greg Hairston (Caroline Klosko ; Virginia Legal Aid Society, Inc. , on brief), for appellant. Elizabeth B. Peay, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorn ey General, on brief) , for appellee Virginia Employment Commissio n . No brief or argument f or appellee Wal Mart Associates, Inc.

Jennifer G. Francis (“Francis”) appeals a ruling from the Circuit Court for Campbell County (“circuit court”), dated March 25, 2011, affirming a decision from the Virginia Employment Commission (“VEC”), entered May 6, 2009, that disqualified Francis from receiving unemployment compensation benefits u nder the Unemployment Benefits Act (“the Act”). Specifically, Francis allege s the circuit court erred in affirming the VEC’s ruling that Francis was terminated from her employment at Wal

- Mart for “misconduct connected with” her work. For the following reasons, we affirm the decision of the VEC.
I. Background The facts are not in dispute. Francis was employed from June 8, 2006 to April 22, 2008, as a merchandising supervisor in the health and beauty department at Wal

- Mart, earning $8.35- 2

- per hour. Francis’s job duties included making price changes on merchandise and stocking shel ves. Francis also supervised two associates, and , on occasion, she was required to operate the cash register. Francis did not have any problems at Wal

- Mart prior to April 22, 2008, and had never been disciplined at work. On April 22, 2008, Francis inform ed Wal

- Mart that she was going to be charged with two felony counts of welfare fraud. Wal

- Mart suspended Francis’s employment pending the outcome of the case and informed Francis that if she was found guilty of the charges, her employment with Wal

- Mart wo uld be terminated. Wal

- Mart also gave Francis the option of resigning her employment so it would be easier to get another job. On May 26, 2008, Francis notified Wal

- Mart that she had decided to plead guilty to the charges and, as a result, Francis submit ted her resignation in lieu of termination. Francis ultimately received a suspended sentence and probation as a result of her convictions

. Francis filed a claim for unemployment benefits with the VEC on May 27, 2008. A claims deputy denied her claim on J une 18, 2008, and Francis appealed. The appeals examiner conducted a telephonic hearing on September 18, 2008. At the hearing, Francis’s immediate supervisor, Jennifer Campbell, confirmed that Francis would have been terminated had she not resigned, and explained th at Francis violated Wal

- Mart’s c ode of e thics when she committed welfare fraud. Campbell stated that “fraud in itself is related to retail, because retail deals with dollars, it deals with paperwork dollars, it deals with physical dollars and merchandise.” Campbell also admitted, however, that she would never have known about the charges against Francis had Francis not told her about them herself. Lisa Radcliff, a store manager at Wal

- Mart, admitted she had not received any complaints over Fra ncis’s job performance, but she confirmed that Francis’s act of committing welfare fraud violated Wal

- Mart’s c ode of e thics. Radcliff specifically referenced a “financial- 3

- int egrity” clause from Wal

- Mart’s c ode of e thics that requires “honest and accurate recording and reporting of financial information .

. . in order for that Associate to make responsible decisions.” Wal

- Mart did not provide a copy of the entire policy for review. Upon the conclusion of all the testimony, Francis argued to the appeals exa miner that the financial integrity clause in Wal

- Mart’s c ode of e thics is “talking about reporting information at Wal

- Mart” and speculated “if she would have falsely reported something .

. . her financial information at Wal

- Mart .

. . then that’s what it w ould have applied [to].” Francis argued that the policy “has nothing to do with what she did, welfare fraud. It had nothing to do with her job at Wal

- Mart.” Francis stressed that her supervisors would, in fact, never have known about the charges had she not told them herself and concluded that her misdeeds were “not connected with work.” The appeals examiner disagreed with Francis and denied benefits. Francis then appealed
to a special examiner

. By order entered May 6, 2009, the special examiner affi rmed the appeals examiner and disqualified Francis from receipt of unemployment benefits. The special examiner concluded, [Wal

- Mart] has presented sufficient evidence to establish a reasonable nexus between [Francis’s] job duties and responsibilities an d the misconduct. [Francis] pled guilty to and was convicted of felony welfare fraud, a crime of moral turpitude. The evidence also established that [Francis’s] job duties and responsibilities required her to, among other things, operate the cash registe r for the employer, which placed her in a fiduciary capacity, and a position of trust with the employer. Francis appealed the matter to the circuit court. The circuit court held a hearing on March 25, 2011, and “after considering the authorities and argume nts of counsel,” affirmed the VEC’s decision. Francis timely noted her appeal to this Court.- 4

- II. Analysis The sole question on appeal is whether the circuit court erred in affirming the VEC’s finding that Francis was terminated from her employment for misconduct “connected with work.” 1 In cases that originated in the VEC, we, “[l] ike the circuit court, ” must “‘ consider the evidence in the light most favorable to the finding by the Commission. ’” Williamson v. Va. Empl. Comm ’ n & Mills Heating & Air Cond itioning, Inc. , 56 Va. App. 14 , 17, 690 S.E.2d 304,
305 (2010) (quoting Wells Fargo Alarm Servs. v. Va. Empl. Comm ’ n , 24 Va. App. 377, 383, 482 S.E.2d 841, 844 (1997) )

. “‘ If the commission ’ s findings [of fact] are supported by the evidence, they are bindi ng on appeal. ’” Id. (quoting McNamara v. Va. Empl. Comm ’ n , 54
Va. App. 616, 624, 681 S.E.2d 67, 70 (2009) )

. In other words, where the C ommission’s findings of fact are supported by the evidence , “ they are conclusive on appeal and our jurisdiction is
limi ted to questions of law. ” Kennedy ’ s Piggly Wiggly Stores, Inc. v. Cooper , 14 Va. App. 701,
70 4 , 419 S.E.2d 278, 280 (1992) (citing Israel v. Virginia Employment Comm ’ n , 7 Va. App. 169, 172, 372 S.E.2d 207, 209 (1988) )

. In cases where the facts are not in dispute, the only question this Court must decide is whether the C ommission’s findings of fact “are sufficient, as a matter of law, to constitute misconduct.” Id. at 704, 419 S.E.2d at 280. Under the Act, “ ‘[t]he legislature intended unemployment benef its to be paid only to those who find themselves unemployed without fault on their part.’” Va. Empl. Comm’n v. Cmty. Alternatives, Inc. , 57 Va. App. 700, 704 , 705 S.E.2d 530, 532

- 33 (2011) (quoting Va. Emp ’ t Comm ’ n v. Trent , 55 Va. App. 560, 568, 687 S.E. 2d 99, 103 (2010) )

. Nevertheless, since

1 According to the VEC, “[i]n cases where an employee is given the option of resigning or being discharged, and chooses to resign, the comm ission has consistently held that the separation from employment is involuntary and the merits of the case should be considered under [Code] § 60.2

- 618(2).” VEC does not dispute the fact that Francis’s separation from employment was involuntary.- 5

- t he Act is remedial in its purpose , i d. at 708, 419 S.E.2d at 282 (citing Israel , 7 Va. App. at 172, 372 S.E.2d at 209) , “[e]ven employees who are fired for what the employer considers good cause may be entitled to unemployment compensation , ” Blake v. Hercules, Inc. , 4 Va. App. 270, 273, 356 S.E.2d 453, 455 (1987). Thus, “‘ t he statutory term “ misconduct ” should

. . . be construed in a manner least favorable to working a forfeiture so as to minimize the penal charact er of the provision by excluding cases not clearly intended to be within the exception. ’ ” Piggly Wiggly , 14 Va. App. at 707

- 08, 419 S.E.2d at 282 (quoting 76 Am. Jur. 2d, Unemployment Compensation § 77 (1992))

.

“‘ Furthering this policy goal, Code § 60.2

- 618(2)(a) 2 prohibits benefits if the Commission finds such individual is unemployed because he has been discharged for misconduct connected with his work. ’” Cmty. Alternatives , 57 Va. App. at 704, 705 S.E.2d at 532

- 33 (quoting Trent , 55 Va. App. at 568, 687 S.E.2d at 103 ). [ A ] n 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.

2 Code § 60.2

- 618 provides: An individual shall be disqualified for benefits upon separation from the last employing unit for whom he has worked 30 days or 240 hours or from any subsequent employing unit:

* * * * * * *
2. a. For any week benefits are claimed unt il he has performed services for an employer (i) during 30 days, whether or not such days are consecutive, or (ii) for 240 hours, and subsequently becomes totally or partially separated from such employment, if the Commission finds such individual is unemp loyed because he has been discharged for misconduct connected with his work

. ( Emphasis added. )- 6

- Branch v. Virginia Employment Commission , 219 Va. 609, 611, 249 S.E.2d 180 , 182 (1978) (emphasis in original). “‘T he Branch definition of misconduct has two prongs. ’” Piggly Wiggly , 14 Va. App. at 705, 419 S.E.2d at 281 (quoting Israel , 7 Va. App. at 173, 372 S.E.2d at 209 )

. “The first prong defines misconduct as a deliberate violation of a company rule.” Id. at 705, 419 S.E .2d at 281. “ [ T ] h e second prong contemplates actions or omissions of such a nature or so recurrent as to manifest a willful disregard of the employer’s interests and the duties and obligations the employee owes the employer.” Id. “ A forfeiture of benefi ts will be upheld only where the facts clearly demonstrate ‘misconduct , ’” id. at 707, 419 S.E.2d at 282 , and “[t] he employer bears the burden of proving [that] misconduct ,” i d. at 705 , 419 S.E.2d at 280. Once that burden is met, the employee is disqualifi ed for benefits “‘ [a] bsent circumstances in mitigation ’ ” of his conduct. Id. (quoting Branch , 219 Va. at 611

- 12, 249 S.E.2d at 182). “‘The burden of proving mitigating circumstances rests upon the employee. ’” Id. at 705, 419 S.E.2d at
280

- 81 (quoting Br anch , 219 Va. at 611

- 12, 249 S.E.2d at 182). Francis does not dispute the validity of Wal

- Mart ’s decision to terminate her employment for committing welfare fraud ; rather, the issue in this case is Francis’s ability , upon her discharge , to receive unemplo yment benefits. In other words, Francis does not deny that she committed misconduct; she merely alleges her misconduct was not in any way “connected with her work.” We disa gree with Francis and find that her actions meet the definition of misconduct unde r the second prong of the Branch test. Indeed, t he record shows that Francis worked at Wal

- Mart from June 8, 2006 to April 22, 2008, as a merchandising supervisor in the health and beauty department at Wal

- Mart, earning $8.35 per hour. Francis’s job duti es included making price changes on merchandise and stocking shelves. Francis also supervised two associates, and on occasion, she was required to operate the cash register. Jennifer Campbell testified that Francis’s job “deals with dollars, it deals wit h paperwork dollars, it deals with physical dollars- 7

- and merchandise.” Thus, as the VEC found , Francis’s job duties and responsibilities “ placed her in a fiduciary capacity and a position of trust ” with Wal

- Mart. Although Francis did not create any proble ms at Wal

- Mart prior to April 22, 2008 and although she had never been disciplined at work , the fact remains that in her employment at Wal

- Mart she was in a position of trust , and welfare fraud is a crime of moral turpitude. It follows that Francis’s acti ons in committing welfare fraud placed her in a position of distrust and, by extension, manifest ed a willful disregard of Wal

- Mart’s interests and the duties and obligations Francis owe d h er employer. The fact that Francis herself found it necessary to re port the pending charges to Wal

- Mart suggests she knew her activities outside of employment had a bearing on Wal

- Mart’s interests. We , thus, agree with the VEC and the circuit court that Wal

- Mart carried its burden of proving that Francis’s miscondu ct was connected with her work , and F rancis has failed to prove any mitigating circumstances justifying receipt of unemployment compensation. In sum, the circuit court did not err in affirming the VEC’s finding that Francis’s misconduct was connected with her w ork , and its decision that she should be denied benefits under the Act is, therefore, affirmed. Affirmed.