COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, 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 EMPLOYMENT COMMISSION AND 

 JEFFREY W. JOERGER 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Alfred D. Swersky, Judge Designate 

 Alan Shachter (Rachel A. Shachter, 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 from 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 the commission’s factual 

findings were supported by the evidence. We hold the circuit court did not err in concluding 

credible evidence in the record supports the commission’s finding. Thus, we affirm. 

I. 

BACKGROUND 

 Employer, a workers’ compensation attorney operating her own law firm as a sole 

proprietor, hired claimant as an assistant paralegal on October 24, 2006. She terminated 

claimant’s employment on February 1, 2007. 
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Claimant filed a claim for unemployment benefits with the commission. Employer 

disputed the claim, contending she discharged claimant for misconduct connected with his work. 

Following a telephonic fact-finding 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 determination to an appeals examiner, who conducted a 

hearing at which employer and claimant testified. Employer indicated claimant portrayed 

himself as an experienced office worker and paralegal and that, although she “saw that he was 

. . . capable of performing the job” for short periods 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 product or level of productivity. 

The appeals examiner issued a written decision in which she recognized that employer 

bore the burden of proving misconduct and concluded 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 appeals 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 “claimant 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. 
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Claimant appealed to the commission, which appointed a special examiner1

 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 fact 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 guilty 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 benefits as a result of his separation. 

Employer filed a petition for review in the circuit court, contending the commission 

should have deferred to the appeals examiner’s credibility determinations and held claimant was 

discharged for behavior amounting to willful misconduct. The circuit court held that although 

“[m]ultiple complaints by the employer about Claimant’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 that she discharged [claimant] 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).
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II. 

ANALYSIS 

 Employer’s challenge to the award of benefits 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 authorized 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 commission’s decision failed to recognize this fact. In part as a result 

of these errors, she avers the commission and circuit 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 misconduct and that the commission should have held claimant was 

disqualified from receiving unemployment benefits. 

A. 

FACTUAL FINDINGS 

In the course of an appeal of a commission decision 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 controverted facts” and “questions 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, they 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). 
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At issue in this case is the degree of deference the commission owes to its appeals 

examiner’s determinations of witness credibility. 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 not 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 determinations 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 that upon 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, their representatives and witnesses’”). From this 

statutory authority, we reasoned that when the Workers’ Compensation Commission opts to 

conduct a review on the record without hearing evidence, it must explain any credibility 

determinations it makes that are contrary to the deputy’s only if the deputy “ma[de] an explicit 

finding of credibility based upon a witness’ demeanor 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] regarding 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’ compensation context, the statute governing the Employment 

Commission’s review of an appeals examiner’s decision provides that the commission may 

“receive [additional] evidence itself,” Code § 60.2-622(A), thereby permitting de novo review. 
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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 hold the commission must explain any credibility determinations it 

makes that are contrary to the appeals examiner’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 behavior, demeanor or appearance of [a particular witness], the 

commission ha[s] no duty to explain its reasons for finding [that witness] 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 observation” 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 regarding the witness’ credibility was not plainly 

wrong, the circuit court did not err in upholding the commission’s decision 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 Christmas bonus with a note indicating . . . it was 

for a job well done” is supported by the evidence.2 The commission’s written decision expressly 

 2

 Counsel for the commission contended at oral argument that the commission’s factual 

findings related to the holiday card and bonus check were dicta. Because the commission’s 

written opinion establishes it weighed the evidence of both parties and concluded, based on that 
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found as a fact that claimant “received a $200 Christmas bonus with a note thanking him for his 

help” and cited Exhibit 9 in support of this finding. 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 inferences 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 claimant successfully worked with two difficult clients 

over the phone and was able to complete his paperwork 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. Manifestly, only behavior known to the employer 

at the time of the discharge may serve as a basis 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 findings about the holiday card and bonus check were not dicta. 
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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, the 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 . . . .’” 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, 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.” 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 are likely to be those considerations which 

establish that the employee’s actions were not in disregard of [the employer’s] interests. 
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Evidence of mitigation may appear in many forms 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, established 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 misconduct. The commission, by counsel, contends 

employer did not present a prima facie case of misconduct and, as a result, that “the only facts 

that matter are those that [employer] put into evidence.” It contends that 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 evidence, 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 ruling 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 presented sufficient “plausible evidence (regardless of 

whether it is in fact believed) . . . [to] shift[] the burden of persuasion 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 Virginia Birth-Related 

Neurological Injury Compensation Act) (emphasis added). The term prima facie may also “be[] 
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used alongside an actual preponderance standard[,] . . . 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 was authorized to do, that employer had not proved claimant 

engaged in willful misconduct. The commission expressly “reject[ed] [certain] 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 Christmas 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-tasking required in a solo practice law office.” 

Thus, we consider on the merits whether the evidence supported the commission’s findings on 

the misconduct issue. 

 The evidence, viewed in the light most favorable to claimant, was that 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 day 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 was having trouble completing his work in a timely fashion because, 

until January 26, 2007, just six days before employer 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 greeting card containing the $200 check and the note 
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thanking him for his help. The commission expressly 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 successfully, 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 determination of whether claimant’s behavior 

causing the discharge was egregious enough to qualify as misconduct. See Whitt, 20 Va. App. at 

437, 457 S.E.2d at 731. 

The commission concluded claimant’s behavior 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 conclude this evidence failed to establish “acts or 

omissions [that were] 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.” 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 period 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 behavior 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—cursing 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 employer’s reasonable instructions—refusing to 
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prepare a report, adding unauthorized information 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 violation 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 assess claimant’s evidence of 

mitigation. 

III. 

 For these reasons, we affirm the circuit court’s decision affirming the commission’s 

ruling that claimant was entitled to receive unemployment compensation. 

Affirmed.