COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Ag ee and Senior Ju dge Coleman

GARY J. STASKO MEMORANDUM OPINION * v. Record No. 28 35-00-2 PER CURIAM APRIL 24, 2001 VIRGINIA EMPLOYMENT COMMISSION AND VAN YAHRES TREE COMPANY, INC.

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE Edward L. Ho gshire, Judge (Gary J. Stasko, pro se , on brief). (Mark L. Earley, Atto rney General; Lisa J. Rowley, Assist ant Attorney Gene ral; Donald G. Powers, Assist ant Attorney General; Francis McQ. Lawrence ; St. John, Bowling & Lawrence, on brief), for appellees.

Gary J. Stasko cont ends that the Circuit Court of the City of Charlottesville (trial court) erre d in affirming a decision of the Virginia Employment Co mmission (Commission) that disqualified him from receiving unemploy ment compensation bene fits. Stasko argues that the Commission wr ongly determined that he left employment with Van Yahres Tree Company, Inc. (Van Yahres) with out good cause. Upon reviewin g the record and the br iefs of th e parties, we conclude that this appeal is with out merit. Ac cordingly, we summarily affirm the trial cour t's decision. See Rule 5A:27.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication."[I]n any judicial proceedings 'the findings of the commission as to the facts, if supp orted by evidence and in the absence of fraud, shal l be conclusive , and the jurisd iction of the court shall be confined to questions of law.'" Israel v. Virginia Employment Comm'n , 7 Va. App. 169, 172, 372 S.E.2d 207, 209 (1988) (citation omitte d). "In accord with our usual standard of review, we 'consider the evid ence in the light mo st favorable to the finding by the Commission.'" Wells Fargo Alarm Servs., Inc. v. Virginia Employment Comm'n , 24 Va. App. 377, 38 3, 482 S.E.2d 841, 844 (1997) (citation omitted). So viewed, the eviden ce established that Stasko worked for Van Yahres as an arbori st and crew leader fr om February 18, 1996 to January 12, 1999 . When Stasko was first hired, Van Yahres paid him $10 per hour. In November 1996, Va n Yahres began paying Stasko wages on a salari ed basis instea d of an hourly basis. Van Yahres initially paid Stasko $32,000 per year, and by January 1999, his pay ha d risen to $35,000 per year. All other crew leaders with the company were paid hourly wage s. Van Yahres also paid Stasko's health insurance premiu ms and gave hi m a total of three weeks vacati on and sick leave annual ly. The comp any allowed Stasko to use th eir trucks for pe rsonal use. On or about Januar y 11, 1999, Van Yahres changed the method of payment of Stasko's wages from a salaried rate back to an hourly rate. At a hearing before the ap peals examin er, David Rosene, Sales Ma nager for Van Ya hres, testified that neither

- 2 -Stasko nor the company had been "happy" with the "way things were going with his salary." After several days of disc ussion with Stasko, Van Yahr es decided that an hourly pay rate was "the better way to go." Van Yahr es converted St asko's annual salary to an hourly wage of $15.50 per hour based on th e average nu mber of hours he worked per we ek in the prev ious year. Th e company also guaranteed Stasko woul d have forty hours of work per week in the winter, with additional overtime hours as th ey were available in the summer months. Rosene stated that Stasko could earn more money at the hourly wage rate than he had earned while on sa lary. Rosene also testified that, ot her than changing the me thod of wage payment, there were no changes made with rega rd to Stasko's benefits or job duties. Stasko would also continue to report to the same supervisor. Rosene te stified Stasko advised the company that he was not willing to work at the ho urly wage rate, and he quit after giving about "five minu tes" notice to the co mpany. Rosene also stated that Stasko had had some "philosophical disagreements" with his immediate supervisor, and Rosene was unsure whet her that was a factor in Stas ko's decision to quit. Stasko testified that he believed the ch ange in method of payment was a demo tion and involved a "lot of risk." Stasko had perceived his posi tion with the co mpany as one of "equal footing" with the officers of the company, and he st ated the change to hourly pay was "a penalt y." He testif ied that going from salaried

- 3 -to hourly wages "hurt. " Stasko also test ified that, after Van Yahres changed the method of his wage payment, the office rs of the company critic ized him and atte mpted to "squeeze " him out of the

company. Stasko quit his jo b on January 12, 19 99, withou t having secured other empl oyment. He appl ied for unemploy ment benefits, and he indicated on th e Commission claim for benefits form that his reason for separation was that he "voluntarily quit." Stasko also wrote in the ex planatory rema rks portion of the form, "Demotion contra ry to company success." The Commission denied Stasko's application for unemployment benefits. On this appeal, Stasko contends the trial court erred in affirming the ruling of the Commission. He argues that the work environment had become hostile, and the officers attempted to "squeeze" him out of the company. Code § 60.2-618(1) states that "[a]n individual shall be disqualified for benefits upon separation from the last employing unit . . . if the Commission finds such individual is unemployed because he left work voluntarily without good cause." "Determining whether an employee voluntarily quit without good cause is a mixed question of law and fact reviewable on appeal." Snyder v. Virginia Employment Comm'n , 23 Va. App. 484, 491, 477 S.E.2d 785, 788 (199 6). Determining good cause requires a two-part analysis. See id. at 491, 477 S.E.2d at 788. First, it must be determined whether th e employee's di spute with his

- 4 -employer is reas onable. If the dispute is reason able, then it must be determined whether the empl oyee made reason able efforts to resolve the di spute before quitting his employment. See id. "[B]efore relinquishing his employment . . . the claimant must have made every effort to eliminate or adjust with his employer the differences or conditions of which he complains. He must take those steps that could be reasonably expected of a person desirous of retaining his employment before hazarding the risks of unemployment." In other words, a claimant must take all reasonable steps to resolve his conflicts with his employer and retain his employment before voluntarily leaving that employment. Umbarger v. Virginia Employment Comm'n , 12 Va. App. 431, 434-35, 404 S.E.2d 380, 383 (1 991) (citation omitted) . An employee may not rely upon his ow n "unreasonabl e and purely subjective perception" to justify vo luntary unem ployment. Id. at 435, 404 S.E.2d at 383. The record supports the Commissi on's finding that Stasko voluntarily quit his position without good cause. Stasko admitted that his pay and benefi ts would have remain ed substant ially the same after the change from a salaried wage to an hourly wage. Indeed, he testified that the de termination of th e hourly wage

"wasn't a concer n." The record al so showed that St asko would have had the same job duti es, the same benefits , and he would have reported to the same supervisor after the change. Therefore, as the trial court fo und, "the proposed rest ructuring in [Stasko's] pay would have placed [him] in a position that was virtually

- 5 -indistinguisha ble from his prio r position from the viewpoint of annual earnings, fringe benefits, and position in the company's management structure. " Even assuming, arguendo , that these circumstances in volved a "reasonable em ployment dispute," the record shows that Stasko took no measure, reas onable or otherwise, to resolve that dispute be fore leaving employment. Cf. id. at 437, 404 S.E.2d at 38 4. Accordingl y, the Commission did not err in disqualifying Stasko from re ceiving unemploy ment benefits. Affirmed.

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