COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton, and Overton 

Argued at Salem, Virginia 

WILMA S. GARDNER 

v. Record No. 2240-94-3 MEMORANDUM OPINION* BY 

 JUDGE NELSON T. OVERTON 

VIRGINIA EMPLOYMENT COMMISSION, JANUARY 16, 1996 

 HERCULES, INC. and 

 STANDARD INDUSTRIAL MAINTENANCE, INC. 

FROM THE CIRCUIT COURT OF CARROLL COUNTY 

Duane E. Mink, Judge 

 Margaret T. Schenck (Southwest Virginia Legal Aid 

Society, Inc., on briefs), for appellant. 

 Patricia H. Quillen, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; Lisa J. 

Rowley, Assistant Attorney General, on brief), for 

appellee Virginia Employment Commission. 

 No briefs or arguments for appellees Hercules, 

Inc. and Standard Industrial Maintenance, Inc. 

 

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

designated for publication. 

 Wilma Gardner appeals from a decision of the Circuit Court 

of Carroll County affirming the Virginia Employment Commission's 

denial of her claim for unemployment compensation benefits. The 

Commission found Gardner disqualified for benefits because she 

voluntarily resigned from her position without good cause. We 

find adequate evidence in the record to support this 

determination, and we affirm the decision of the trial court. 

 Gardner's employment entailed cleaning restrooms, a 

cafeteria, and administrative offices. On her first day, she 

noticed cigarette smoke in many of the work areas to which she 
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would be exposed. Smoke bothered her, and she told her 

supervisor that she did not know if she would be able to handle 

the smoke. Her supervisor told her that this job and all others 

in the building would require her to come into contact with 

cigarette smoke. Gardner nevertheless began work and continued 

for three days. She then resigned by leaving a message with her 

supervisor's receptionist. While she did not give any reason at 

that time for her resignation, when she returned to pick up her 

check later she stated that health problems had caused her to 

leave. She did not seek medical treatment prior to her 

resignation. She did not inform her employer that she could not 

continue working because of the smoke nor did she request a 

transfer. 

 If an employee voluntarily leaves employment without good 

cause, that individual becomes disqualified for unemployment 

compensation. Code § 60.2-618(1). The question of good cause 

must be considered with a two-part analysis. The Commission and 

reviewing courts must first apply an objective standard 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). 

 Gardner's conduct does not rise to a level sufficient to 

satisfy the second part of the analysis. "[A]n employee, who for 

some reason, becomes dissatisfied with his work, must first 
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pursue every available option open to him whereby he might 

alleviate or correct the condition of which he complains before 

relinquishing his employment." Lee v. Virginia Employment 

Comm'n, 1 Va. App. 82, 85, 335 S.E.2d 104, 106 (1985). Gardner 

mentioned that smoke bothered her on the first day. After that, 

she made no attempts to correct the problem. She did not request 

a transfer or leave. She did not discuss alternatives with her 

supervisor. She did not even inform her supervisor of her 

troubles until a week after she resigned. The record does not 

disclose the required "steps that could be reasonably expected of 

a person desirous of retaining his employment before hazarding 

the risks of unemployment." Id.

 Having found that Gardner failed the second element of the 

Umbarger two-part analysis, we need not discuss the first. The 

Commission and the trial court properly disqualified Gardner from 

unemployment benefits for her voluntary resignation without good 

cause. 

 Affirmed.
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BENTON, J., dissenting. 

 Gardner left her employment because of cigarette smoke in 

her workplace environment and the harmful effect of the smoke on 

her health. Thus, based on Umbarger v. VEC, 12 Va. App. 431, 404 

S.E.2d 380 (1991), I would hold that the evidence proved that 

Gardner had good cause to leave her employment. 

 The evidence in the record proved that Gardner informed her 

supervisor on her first day of employment that she could not 

tolerate cigarette smoke. The supervisor, who was smoking, 

extinguished his cigarette and told her that "the only jobs . . . 

[available] in that building . . . [put] you . . . in contact 

with cigarette smoke." Gardner was employed and worked for three 

days. However, she quit after she began to experience breathing 

problems. 

 The evidence proved that the employer had no jobs available 

that would not expose Gardner to cigarette smoke. Gardner's 

supervisor testified that "she was doing a great job," but he had 

no job that was in a smoke-free environment. The supervisor 

testified that "this job that she had would probably have been 

the least [contact with cigarette smoke] because she was cleaning 

in the administrative offices which took about 50 percent of her 

time." Smoking, however, was permitted in the offices. 

 The evidence proved that all of Gardner's prior employment 

had been in smoke-free environments. The evidence also proved 

that Gardner suffered ill effects from cigarette smoke and that 
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she informed the supervisor of her problem when she was hired. 

In addition, the undisputed evidence proved that the employer had 

no alternative employment available that was in a smoke-free 

environment. Under Umbarger, Gardner was entitled to receive 

unemployment benefits.