COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued at Salem, Virginia 

JERRY F. HUNTER 

 MEMORANDUM OPINION* BY 

v. Record No. 0947-97-3 JUDGE LARRY G. ELDER 

 DECEMBER 23, 1997 

VIRGINIA EMPLOYMENT COMMISSION, ET AL. 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 James L. Scruggs (Virginia Legal Aid Society, 

Inc., on briefs), for appellant. 

 Robert L. Walker, Assistant Attorney General 

(Richard Cullen, Attorney General; William A. 

Diamond, Assistant Attorney General, on 

brief), for appellee Virginia Employment 

Commission. 

 No brief or argument for appellee D. M. 

Broughton & Associates, Inc. 

 Jerry F. Hunter (appellant) appeals an order of the Circuit 

Court of the City of Lynchburg (circuit court) affirming a 

decision of the Virginia Employment Commission (commission) 

denying his claim for unemployment benefits. He contends that 

the trial court erred when it concluded that the evidence was 

sufficient to support the commission's determination that he was 

"discharged for misconduct connected with his work." For the 

reasons that follow, we affirm. 

 "In order to receive unemployment benefits, a claimant must 

 

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

designated for publication. 
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be eligible under Code § 60.2-612 and not disqualified under Code 

§ 60.2-618." Actuarial Benefits & Design Corp. v. Virginia 

Employment Comm'n, 23 Va. App. 640, 645, 478 S.E.2d 735, 737 

(1996). Under Code § 60.2-618(2), a claimant is disqualified 

from receiving unemployment benefits "if the Commission finds 

such individual is unemployed because he has been discharged for 

misconduct connected with his work." The Virginia Supreme Court 

has construed the phrase "misconduct connected with his work" to 

bar entitlement to benefits in two scenarios: (1) when the 

claimant "deliberately violate[d] a company rule reasonably 

designed to protect the legitimate business interests of his 

employer" or (2) when "[the claimant's] 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 to his 

employer." Branch v. Virginia Employment Comm'n, 219 Va. 609, 

611, 249 S.E.2d 180, 182 (1978) (emphasis in original); see also

Virginia Employment Comm'n v. Gantt, 7 Va. App. 631, 634, 376 

S.E.2d 808, 811, aff'd en banc, 9 Va. App. 225, 385 S.E.2d 247 

(1989); Israel v. Virginia Employment Comm'n, 7 Va. App. 169, 

173, 372 S.E.2d 207, 209 (1988). The range of behavior that 

constitutes "misconduct" under Code § 60.2-618(2) is more narrow 

than the range of behavior that justifies an employer's decision 

to discharge an employee. "[E]mployees who are fired for what 

the employer considers good cause may [still] be entitled to 

unemployment compensation," Blake v. Hercules, Inc., 4 Va. App. 
 3 

270, 273, 356 S.E.2d 453, 455 (1987), and "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. Virginia Employment Comm'n, 17 

Va. App. 720, 722, 440 S.E.2d 630, 631 (1994). 

 The burden is on the employer to prove that a claimant's 

discharge was due to misconduct connected with his work. See

Kennedy's Piggly Wiggly Stores, Inc. v. Cooper, 14 Va. App. 701, 

705, 419 S.E.2d 278, 280-81 (1992). Once the employer has 

established a prima facie case of misconduct connected with the 

work, "the burden shifts to the claimant to prove circumstances 

in mitigation of his or her conduct." Gantt, 7 Va. App. at 635, 

376 S.E.2d at 811; see also Whitt v. Ervin B. Davis & Co., Inc., 

20 Va. App. 432, 438-39, 457 S.E.2d 779, 782 (1995). Mitigating 

circumstances include those considerations that tend to establish 

that the employee's actions were not in deliberate, willful 

disregard of a company rule or the employer's business interests. 

Gantt, 7 Va. App. at 635, 376 S.E.2d at 811. 

 "Whether an employee's behavior constitutes misconduct is a 

mixed question of law and fact reviewable by this court on 

appeal." Israel, 7 Va. App. at 172, 372 S.E.2d at 209. The 

commission's factual findings are conclusive and binding if 

supported by the evidence and in the absence of fraud. Code 

§ 60.2-625. "Under well settled principles, we consider the 

evidence in the light most favorable to the findings of the VEC 
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to determine whether employer met its burden of proving that 

claimant was discharged for misconduct connected with [his] 

work." Whitt, 20 Va. App. at 436, 457 S.E.2d at 781. 

 We hold that appellant's failure to notify employer of his 

absence from work until noon on July 8, 1996 constituted 

"misconduct connected with his work" that disqualified him from 

receiving unemployment benefits. Appellant does not contend that 

employer's attendance policy is not "reasonably designed to 

protect the legitimate business interests of [employer]." The 

commission found that appellant "knew that his employer expected 

prompt notification if he was unable to report for work as 

scheduled" and concluded that appellant "deliberately and 

willfully failed to give [notice to employer] in the morning of 

July 8, 1996." These findings are supported by credible evidence 

in the record. Charles W. Read, employer's president, testified 

that employer had a verbal policy requiring employees to notify 

it of absences "first thing in the morning." He also testified 

that this policy was "made plain" to all employees, including 

appellant. Appellant testified that, when he awoke on July 8, he 

experienced substantial pain in the area of his stomach. 

However, despite his knowledge that he was expected at work at 

7:30 in the morning and that employer required prompt 

notification of illness-related absences, appellant did not 

report his absence to employer until "about noon." Appellant 

offered no evidence indicating that his condition on July 8 
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prevented him from either calling employer before noon or asking 

his mother to call for him. In light of the commission's 

findings, which are binding on appeal, we conclude that appellant 

"deliberately violated a company rule reasonably designed to 

protect the legitimate business interests of his employer." As 

such, the circuit court's affirmance of the commission's decision 

that appellant was disqualified from receiving benefits was not 

erroneous. 

 For the foregoing reasons, we affirm the order of the 

circuit court. 

 Affirmed.