COURT OF APPEALS OF VIRGINIA
Present: Judges Elde r, Beales and Powell Argued at Alexandria, Virginia

DIANE C. H. McNAMARA OPINION BY v. Record No. 2317-08-4 JUDGE LARRY G. ELDER AUGUST 18, 2009 VIRGINIA EMPLOYMEN T COMMISSION AND JEFFREY W. JOERGER

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Alfred D. Swersky, Judge Designate Alan Shachter (Rachel A. Shac hter, on briefs), for appellant. Thomas W. Nesbitt, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee Virginia Employment Commission. No brief or argument for appellee Jeffrey W. Joerger.
Diane C.H. McNamara (employer) appeals fr om a decision of the Prince William County Circuit Court affirming the determination of the Virginia Employment Commission (the commission) that Jeffrey W. Joerger (claimant) was entitled to unemployment benefits. On appeal, McNamara contends the circuit court erroneously concluded th e commission’s factual findings were supported by the evidence. We hol d the circuit court did not err in concluding credible evidence in the reco rd supports the commission’s finding. Thus, we affirm.
I. BACKGROUND Employer, a workers’ compensation attorn ey operating her own law firm as a sole proprietor, hired claimant as an assistan t paralegal on October 24, 2006. She terminated claimant’s employme nt on February 1, 2007.- 2 - Claimant filed a claim for unemployment benefits with the commission. Employer disputed the claim, contending sh e discharged claimant for misc onduct connected with his work. Following a telephonic fact-findi ng conference, a commission deputy determined claimant’s deficiencies in job performance did not rise to the level of misconduct and held claimant was entitled to unemployment benefits. Employer appealed the deputy’s determinati on to an appeals examiner, who conducted a hearing at which employer and claimant testif ied. Employer indicated claimant portrayed himself as an experienced office worker and pa ralegal and that, although she “saw that he was . . . capable of performing the job” for short peri ods of time, he was not consistent, completed his assigned tasks in a timely fashion only when she “stay[ed] on top of him,” and never completed some of the tasks on his original “to-do” list. Claimant said he performed his job to the best of his ability and that he was not aware until six days before he was terminated that employer was dissatisfied with his work pr oduct or level of productivity. The appeals examiner issued a written deci sion in which she recognized that employer bore the burden of proving misconduct and concl uded she had done so. The appeals examiner found that claimant failed to complete tasks in the manner he had been trained to do, despite appropriate guidance and warnings. The appeal s examiner concluded this evidence, coupled with claimant’s admissions that he did not record and log certain costs as he had been trained to do, “clearly demonstrates a willful disregard for the employer’s business interests, thus amounting to misconduct.” She concluded “claiman t could do much of the work” and that he “simply chose not to.” Based on these findings , the appeals examiner held claimant was disqualified from receiving unemployment benefits.- 3 - Claimant appealed to the commission , which appointed a special examiner 1 to hear oral argument and receive written submissions from the parties. The special examiner, on behalf of the commission, ruled as follows: The Commission rejects the testimony of the employer to the effect that she informed the claimant before he had worked as much as a month that she wanted to terminate him and that he had begged so hard for his job that she agreed to place him on three month’s [sic] probation which he had subsequently failed so as to bring about his termination. Not only did the claimant specifically deny ever being told this, but the f act that he received a Christmas bonus with a note indicating that it was for a job well done runs counter to the employer’s contentions in this regard. This employer has not made out a prima facie case that the claimant deliberately or willfully violated any rules or standards of behavior expected of him as an employee. Instead, the most that has been proven is that he was gui lty of poor performance or errors in judgment which would not be sufficient to constitute misconduct in connection with work. While the commission takes no issue with the employer’s decision to terminate the claimant due to his inability to pick up procedures on his own and do the necessary multi-tasking required in a solo practice law office, he should not be disqualified for benefi ts as a result of his separation. Employer filed a petition for review in th e circuit court, contending the commission should have deferred to the appeals examiner’s cr edibility determinations and held claimant was discharged for behavior amounting to willful mi sconduct. The circuit court held that although “[m]ultiple complaints by the employer about Clai mant’s performance appear to be justified,” the evidence supported the commission’s finding that employer “failed to present sufficient evidence . . . to make a prima facie showing th at she discharged [cla imant] for misconduct connected with his work.” Employer noted this appeal.

1 Code § 60.2-622(C) permits the commissioner to designate a special examiner to hear appeals to the commission. The special examiner ’s decision “shall be the final decision of the Commission under this section, subject to judicial review under § 60.2-625.” Code § 60.2-622(C).- 4 - II. ANALYSIS Employer’s challenge to the award of be nefits turns largely upon the commission’s assessment of the credibility of the evidence. She contends the commission arbitrarily disregarded the credibility determinations of the appeals examiner, who heard the witnesses testify, and that the commission was not authoriz ed to do so. She also argues one of the commission’s specific factual findings is not supported by the evidence and that the circuit court’s affirmance of the commissi on’s decision failed to recognize this fact. In part as a result of these errors, she avers the commission and circ uit court erred in concluding she did not meet her burden of presenting a prima facie case of misconduct. Finally, she contends claimant failed to rebut her evidence of misc onduct and that the commission s hould have held claimant was disqualified from receiving unemployment benefits.
A. FACTUAL FINDINGS In the course of an appeal of a commission deci sion to the circuit court or this Court, “the findings of the Commission as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive.” Code § 60.2-625(A). “[T] he commission is charged with the responsibility of resolving [both] questions . . . of controve rted facts” and “questi ons of credibility.” Va. Empl.
Comm’n v. Gantt , 7 Va. App. 631, 635, 376 S.E.2d 808, 811, aff’d on reh’g en banc , 9 Va. App. 225, 385 S.E.2d 247 (1989) (adopting panel decision as written). If the commission’s findings are supported by the evidence, th ey are binding on appeal. Kennedy’s Piggly Wiggly Stores, Inc. v. Cooper , 14 Va. App. 701, 704, 419 S.E.2d 278, 280 (1992). “Whether an employee’s behavior constituted misconduct . . . is a mixed question of law and fact . . . .” Israel v. Va. Empl. Comm’n , 7 Va. App. 169, 172, 372 S.E.2d 207, 209 (1988).- 5 - At issue in this case is the degree of de ference the commission owes to its appeals examiner’s determinations of witness credibil ity. We have not previously addressed this question in a published decision. In the workers’ compensation context, established principles provide that the Workers’ Compensation Commission is no t bound by a deputy commissioner’s prior findings on questions of witness credibility. Bullion Hollow Enters., Inc. v. Lane , 14 Va. App. 725, 729-30, 418 S.E.2d 904, 907 (1992) (citing Goodyear Tire & Rubber Co. v. Pierce , 5 Va. App. 374, 382, 363 S.E.2d 433, 437 (1987)). In first enunciating this standard, we noted the Workers’ Compensation Commission has statutory authority to hear a case de novo and that, under such circumstances, it is not bound by the credibility determinati ons or other factual findings of the deputy. Pierce , 5 Va. App. at 382-83, 363 S.E.2d at 437-38 (quoting former Code § 65.1-97, now Code § 65.2-705, which provides thatupon an application for review of the decision of a deputy, the Workers’ Compensation Commission “‘shall review the evidence or, if deemed advisable, . . . hear the parties at issue, th eir representatives and witnesses ’”). From this statutory authority, we reasone d that when the Workers’ Co mpensation Commission opts to conduct a review on the record without hearing evidence, it mu st explain any credibility determinations it makes that are contrary to th e deputy’s only if the de puty “ma[de] an explicit finding of credibility based upon a witness’ de meanor or appearance at the hearing.” Lane , 14 Va. App. at 728, 418 S.E.2d at 907. We expressly held that, “[a]bsent a specific, recorded observation [by the deputy] regard ing the behavior, demeanor or appearance of [a particular witness], the [Workers’ Compensation Commission] ha[s] no duty to explain its reasons for finding [one witness] more credible than [another].” Id. at 729, 418 S.E.2d at 907. Just as in the workers’ co mpensation context, the stat ute governing the Employment Commission’s review of an appeals examiner’s decision provides th at the commission may “receive [additional] evidence itself,” Code § 60.2-622(A), thereby permitting de novo review.- 6 - Accordingly, we now hold that, just as in matters before the Workers’ Compensation Commission, see Lane , 14 Va. App. at 729-30, 418 S.E.2d at 907, the Employment Commission is not bound by the appeals examiner ’s prior findings on questions of witness credibility. In this context, as in that one, we hol d the commission must explain a ny credibility determinations it makes that are contrary to the appeals examin er’s only if the appeals examiner “ma[de] an explicit finding of credibility based upon a witness’ demeanor or appearance at the hearing.” See id. at 728, 418 S.E.2d at 907. “ Absent a specific, recorded observation [by the appeals examiner] regarding the behav ior, demeanor or appearance of [a particular witness] , the commission ha[s] no duty to explai n its reasons for finding [that w itness] more credible than [another].” Id. at 729, 418 S.E.2d at 907 (emphasis added). Applying these principles to a review of the [appeals examiner’s] decision [here], we find no “specific, recorded observati on” concerning any witness’ demeanor or appearance insofar as it relates to a credibility determination. Although [the appeals examiner’s] decision [was] based . . . upon [her acceptance of the testimony of employer over claimant], that decision does not set forth a credibility determination formed by observing [either] witness’ demeanor or appearance. Id. Because the commission’s determination regard ing the witness’ credibility was not plainly wrong, the circuit court did not e rr in upholding the commission’s de cision to credit claimant’s testimony over employer’s. We also conclude, given the applicable standard of review on appeal, that the commission’s finding that claimant “received a Ch ristmas bonus with a note indicating . . . it was for a job well done” is supported by the evidence. 2 The commission’s wri tten decision expressly

2 Counsel for the commission contended at or al argument that th e commission’s factual findings related to the holiday card and bonus check were dicta. Because the commission’s written opinion establishes it weighed the eviden ce of both parties and concluded, based on that- 7 - found as a fact that claimant “received a $200 Ch ristmas bonus with a note thanking him for his help” and cited Exhibit 9 in support of this fi nding. Exhibit 9 confirms the note accompanying the bonus check read, “Thank you for your help.” Under settled principles, a fact finder is entitled to draw reasonable infe rences from the evidence. See Bros. Constr. Co. v. Va. Empl.
Comm’n , 26 Va. App. 286, 296, 494 S.E.2d 478, 483 (1998); see also Hawks v. Henrico County Sch. Bd. , 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). The statement, “Thank you for your help,” implies that at least some portion of claimant’s job was “well done,” and employer conceded as much when she testified that claima nt successfully worked with two difficult clients over the phone and was able to complete his pape rwork in a timely fashion for short periods of time. We hold the commission’s statement that the check was for “a job well done,” after its express finding that the note accompanying the check said, “Thank you for your help,” constituted a reasonable inference from the evidence.
B.
PRIMA FACIE CASE AND THE WEIGHT OF THE EVIDENCE An employee shall be disqualified from receiving unemployment benefits “if the Commission finds such individual is unemployed because he has been discharged for misconduct connected with his work.” Code § 60.2-618. Mani festly, only behavior known to the employer at the time of the discharge may serve as a ba sis for a finding of misconduct “resulting in the employee’s discharge.” See Whitt v. Ervin B. Davis & Co., Inc. , 20 Va. App. 432, 437, 457 S.E.2d 779, 781 (1995); see also Robinson v. Commonwealth , 228 Va. 554, 558, 322 S.E.2d 841, 843 (1984) (noting “‘a man cannot be influenced or moved to act by a fact or circumstance

weighing, that employer failed to present a prima facie case of misconduct, see discussion, infra , Part II.B., the commission’s findi ngs about the holiday card and bonus check were not dicta.- 8 - of which he is ignorant’” (quoting Mullins v. Commonwealth , 113 Va. 787, 789-90, 75 S.E. 193, 195 (1912))). Under settled principles, 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. Branch v. Va. Empl. Comm’n , 219 Va. 609, 611, 249 S.E.2d 180, 182 (1978). The parties agree that only the second prong of Branch ’s “misconduct” definition is at issue in this case. “[A] continuing recurrence of . . . violations over a period of time [may] clearly establish[] . . . a deliberate and willful misconduct.” Robinson v. Hurst Harvey Oil, Inc. , 12 Va. App. 936, 940, 407 S.E.2d 352, 354 (1991); see Helmick v. Martinsville-Henry County Econ. Dev. Corp. , 14 Va. App. 853, 421 S.E.2d 23 (1992); Britt v. Va. Empl. Comm’n , 14 Va. App. 982, 420 S.E.2d 522 (1992). However, th e term “‘“misconduct” should not be so literally construed as to effect a forfeiture of be nefits by an employee except in clear instances; rather, the term should be construed in a manner l east favorable to working a forfeiture so as to minimize the penal character of the provision . . . .’” Cooper , 14 Va. App. at 707-08, 419 S.E.2d at 282 (quoting 76 Am. Jur. 2d Unemployment Compensation § 77 (1992)). “Although it certainly may justify an employee’s discharge, be havior which is involuntary, unintentional or the product of simple negligence does not rise to the level nece ssary to justify a denial of unemployment benefits.” Borbas v. Va. Empl. Comm’n , 17 Va. App. 720, 722, 440 S.E.2d 630, 631 (1994). If an employer presents prima facie evidence of misconduct, the burden shifts to the claimant to prove “circumstances in mitigation of such conduct.” Branch , 219 Va. at 611-12, 249 S.E.2d at 182. “Mitigating circumstances ar e likely to be those considerations which establish that the employee’s actions were not in disregard of [the em ployer’s] interests.- 9 - Evidence of mitigation may appear in many form s which, singly or in combination, to some degree explain or justify the employee’s conduct.” Gantt , 7 Va. App. at 635, 376 S.E.2d at 811. Absent proof of circumstances in mitigation, estab lished to the satisfaction of the fact finder, the employee is “disqualified for benefits.” Branch , 219 Va. at 611-12, 249 S.E.2d at 182. Employer contends both that she presented a prima facie case of misconduct and that the weight of the evidence in fact proved mi sconduct. The commission, by counsel, contends employer did not present a prima facie case of misconduct and, as a re sult, that “the only facts that matter are those that [employer] put into ev idence.” It contends th at if this Court holds employer did present a prima facie case of misconduct, a remand is required to permit the commission to balance claimant’s evidence of mitigation against employer’s evidence of disqualifying misconduct. We hold the record establishes the commission weighed the evidence of both parties and concluded, based on that weighing, that employer failed to present a prima facie case of misconduct. We also hold the eviden ce, viewed in the light most favorable to claimant and the commission, supports that conclusion. Thus, we hold the commission was not required to assess claimant’s evidence of mitigation in order to conclude he was entitled to benefits. We affirm the commission’s ruli ng that claimant qualifies for unemployment compensation, and we hold that no remand is required. We have recognized that the term “ prima facie ” has two meanings: As we discussed in Whitt , 20 Va. App. at 438, 457 S.E.2d at 782, establishing a prima facie case may mean that the party with the burden of proof has pres ented sufficient “plausible evidence ( regardless of whether it is in fact believed ) . . . [to] shift[] the burden of pe rsuasion to the other side to rebut it.” Cent. Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield , 42 Va. App. 264, 274, 590 S.E.2d 631, 637 (2004) (discussing these principles in the context of the Vi rginia Birth-Related Neurological Injury Compensation Ac t) (emphasis added). The term prima facie may also “be[]- 10 - used alongside an actual preponderance standa rd[,] . . . requir[ing] the factfinder to subjectively believe the evidence preponderates in the [movant ’s] favor, not merely to conclude that an objective, rational factfinder could so find.” Id. at 275-76, 590 S.E.2d at 637 (emphasis added). The commission’s written opinion here makes clear it used the term prima facie in the latter sense—it assessed the witnesses’ credibility and weighed the evidence as a whole before concluding subjectively, as it wa s authorized to do, that em ployer had not proved claimant engaged in willful misconduct. The commission expressly “reject[ed] [c ertain] testimony of the employer” that she warned claimant about his lack of productivity in November 2006, and it did so in part because “the claimant specifically den[ ied]” employer made such statements. It also expressly found that claimant “received a Christma s bonus with a note indicating it was for a job well done” and that employer “terminate[d] the claimant due to his inability to pick up procedures on his own and do the necessary multi-task ing required in a solo practice law office.” Thus, we consider on the merits whether th e evidence supported the commission’s findings on the misconduct issue. The evidence, viewed in the light most favorab le to claimant, was th at he worked at his job in what he believed was a diligent manner for the duration of his employment, albeit not in a manner that met employer’s expectations for the paralegal position for which she had hired him, and that he worked eight hours a day for each da y he was paid to work. He testified that employer provided him with little formal training and that he asked questions when he did not understand how to perform an assigned task. He explained he did not seek help with his workload or tell anyone he wa s having trouble completing his work in a timely fashion because, until January 26, 2007, just six days before empl oyer terminated his employment, employer did not do or say anything to indicate “there was any issue with [his] performance.” To the contrary, he offered into evidence the holiday greeti ng card containing the $200 check and the note- 11 - thanking him for his help. The commission expr essly relied upon this evidence in rejecting employer’s testimony that she wanted to terminate claimant after only two weeks due to his inefficiency and that, when he begged her not to do so, she agreed to place him on three months’ probation, which he failed to complete succe ssfully, resulting in his termination. The commission properly refrained from relying on evidence of claimant’s alleged poor job performance about which employer learned only after she had discharged claimant, as such evidence was not relevant to the commission’s de termination of whether claimant’s behavior causing the discharge was egregious e nough to qualify as misconduct. See Whitt , 20 Va. App. at 437, 457 S.E.2d at 731. The commission concluded claimant’s behavi or about which employer knew at the time she discharged him constituted, at most, “poor performance or errors in judgment which would not be sufficient to constitute misconduct in connection with work.” The commission was entitled to view the evidence as it did and to c onclude this evidence faile d to establish “acts or omissions [that were] of such a nature or so recu rrent as to manifest a w illful disregard of those interests and the duties and obliga tions he owes his employer.” See Branch , 219 Va. at 611, 249 S.E.2d at 182. Compare Borbas , 17 Va. App. at 723-24, 440 S.E.2d at 632 (holding the evidence failed to prove that Borbas, a prison employee, committed willful misconduct where she violated three unrelated security procedures over a peri od of approximately fourteen months and never exhibited “a period of adequate job performance prior to [her] breaches of security,” thereby failing to exclude the inference that her beha vior was negligent rather than willful), with Britt , 14 Va. App. at 985-86, 420 S.E.2d at 524-25 (holding an employee who had been reprimanded on three separate occasions for the same behavior—c ursing and talking back to his supervisor—was guilty of misconduct); Helmick , 14 Va. App. at 859-60, 421 S.E.2d at 26-27 (holding an employee’s repeated refusal to follow her empl oyer’s reasonable inst ructions—refusing to- 12 - prepare a report, adding unauthorized informa tion to a second report, and sending out two additional reports without allowing her supervisor to review them, in direct contravention of his orders—amounted to misconduct); and Robinson , 12 Va. App. at 940, 407 S.E.2d at 354 (involving an employee’s repeated consumption of the employer’s food without paying for it, a volitional act in clear viol ation of company policy). Because the evidence supported the commission’s finding on the merits that claimant was not discharged for misconduct, the commission was not required to a ssess claimant’s evidence of mitigation.
III. For these reasons, we affirm the circu it court’s decision affirming the commission’s ruling that claimant was entitled to receive unemployment compensation. Affirmed.