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Record No. 0431-00-2

Present: Judges Elder, Bumgardner and Humphreys






Charles L. McCormick, III, Judge


(Bernard Duncan, pro se, on

(Mark L. Earley, Attorney General; Lisa J.
Rowley, Assistant Attorney General, on brief), for appellee
Virginia Employment Commission.

No brief for appellee Data Services America.

Bernard Duncan contends that the Circuit Court
of Mecklenburg County (circuit court) erred in affirming a
decision of the Virginia Employment Commission (Commission) that
disqualified him from receiving unemployment compensation
benefits effective January 3, 1999. The Commission (1) found that
Data Services America (employer) discharged Duncan for misconduct
connected with work under Code ? 60.2-618(2)(a); and (2) denied
Duncan’s request to present additional evidence and testimony
pursuant to 16 VAC 5-80-30(B) of the Rules and General Rules
Affecting Unemployment Compensation
. Duncan further contends
that the Commission’s decisions were procured by fraud and
deceit; that he was denied due process of law; and that the
Commission’s decisions were based upon an incomplete record.
[2] Upon reviewing the record and the briefs of the parties,
we conclude that this appeal is without merit. Accordingly, we
summarily affirm the circuit court’s decision. See Rule

I. Sufficiency of Evidence of

"[I]n any judicial proceedings ‘the
findings of the commission as to the facts, if supported by
evidence and in the absence of fraud, shall be conclusive, and
the jurisdiction 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 omitted).
"In accord with our usual standard of review, we ‘consider
the evidence in the light most favorable to the finding by the
Commission.’" Wells Fargo Alarm Servs., Inc. v. Virginia
Employment Comm’n
, 24 Va. App. 377, 383, 482 S.E.2d 841, 844
(1997) (citation omitted).

So viewed, the evidence established that Duncan
began working for employer as a data entry trainee on June 23,
1998. Employer is a data entry service bureau, which processes a
large quantity of Medicaid claims. A data entry trainee must meet
certain speed and accuracy standards over a specific period of
time before being promoted to a full-fledged operator position.
Once employees reach operator status they receive incentive pay
based upon their keystrokes. Normally, employer allowed a trainee
six weeks to attempt to attain operator status. However, employer
allowed Duncan to remain in trainee status longer than usual,
because it hoped he would eventually be able to meet the speed
and accuracy requirements. Ultimately, employer terminated Duncan
from his employment on January 7, 1999.

In a December 8, 1998 letter to Jean Hofheimer,
employer’s president, Duncan expressed his dissatisfaction with
his pay, his belief that he was being treated unfairly and not
being permitted to use the computer equipment with which he felt
most comfortable, his belief that when he discussed personal
business with his supervisors they divulged it to others, not
receiving telephone calls when others had been permitted to do
so, and his belief that he was being harassed and discriminated
against on the basis of his race.

As a result of the December 8, 1998 letter,
Hofheimer and her son, employer’s vice-president and regional
manager, met with Duncan on December 14, 1998. They explained
issues of pay and tried to resolve Duncan’s concerns regarding
discrimination and harassment. Duncan did not seem to agree with
what he was told, but he did not object either.

Duncan did not mention these matters again
until January 4, 1999, when he sent employer another letter. In
that letter, Duncan raised some of the same issues he had raised
in the December 8, 1998 letter, concerning his pay, the type of
computer he was working on, and promotion to operator status.
Duncan’s January 4, 1999 letter also contained the following

I am going to tell you what my intentions are.
First of all, I am going to my friend in Richmond, who works for
the IRS. Then, I am going to the EEOC and the Labor Board, and
the Better Business Bureau. And, if you don’t restitute me, I
will see you in civil court. I am not playing one bit.

You are using people in this "shop".
How many have you used is the question? This is tantamount to
fraud, tax evasion, grand larceny for the money you have pilfered
from workers like me and whatever other violations. I want mine
with interest. You don’t care about me because, if you did, I
wouldn’t be going through this now. I am speaking for Bernard
Duncan only, but if you don’t do the right thing, it will include
any and everybody whoever worked there. I want my money and I
mean it.

Hofheimer perceived Duncan’s January 4, 1999
letter as extremely threatening. As a result, on January 7, 1999,
Hofheimer sent Duncan a letter terminating his employment.
Hofheimer testified that the sole reason for Duncan’s termination
was the tone of his January 4, 1999 letter.

In Hofheimer’s January 7, 1999 letter, she
informed Duncan as follows:

I can only conclude that you and DSA will never
arrive at a solution to your perceived problems. You have been
provided training and opportunity just as all other employees of
the company. I realize that you do not see it that way, but
believe me, the company has no desire to keep keyers from making
operator status.

Hofheimer also wrote:

I do not understand how you arrived at some of
your conclusions and accusations, but as noted above, after
trying to reason with you, I feel that further attempts to
resolve your issues would be futile. Given the tone of your
letter, your further employment would be disruptive to DSA’s

Hofheimer testified that she believed, based
upon Duncan’s January 4, 1999 letter, that he was accusing
employer of "running a racket," of trying to prevent
Duncan from obtaining operator status, of discrimination, and of
several felony offenses, including grand larceny and tax evasion.
She stated that employer had tried to resolve Duncan’s concerns
in the December 14, 1998 meeting, but to no avail. She was also
concerned, based upon the contents of the letter, that Duncan
would involve other employees with his problems, causing
disruption of employer’s business.

Employer’s "General Rules and
Policies," which Duncan was aware of, prohibited employees
from "[c]reating an oral or written statement defaming,
ridiculing, degrading, or otherwise discrediting the company . .
. ." The policy also prohibited employees from
"[t]hreatening, intimidating, coercing, harassing and
insulting another employee at any time" or from committing
"[b]ehavior that is disruptive to the work of others."
The policy made it clear to the employee that engaging in such
conduct could be grounds for termination from employment.

[A]n 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. Virginia Employment Comm’n,
219 Va. 609, 611, 249 S.E.2d 180, 182 (1978). "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

When viewed in a light most favorable to the
Commission and employer, the record establishes that the
threatening and accusatory tone of Duncan’s January 4, 1999
letter, which contained very serious and at that time,
unsubstantiated and defamatory allegations against employer,
demonstrated a deliberate and willful disregard of Duncan’s
duties and obligations to employer which were designed to protect
its legitimate business interests. Accordingly, Duncan’s actions
constituted misconduct connected with work.

"Once the employer has borne the burden of
showing misconduct connected with the work, . . . the burden
shifts to the employee to prove circumstances in mitigation of
his or her conduct." Virginia Employment Comm’n v. Gantt,
7 Va. App. 631, 635, 376 S.E.2d 808, 811, aff’d on reh’g en
, 9 Va. App. 225, 385 S.E.2d 247 (1989). Whether a
claimant’s evidence sufficiently mitigates his behavior so as to
avoid disqualification for benefits is a question of fact for the
Commission. See Britt v. Virginia Employment
, 14 Va. App. 982, 986, 420 S.E.2d 522, 525 (1992).

The Commission was not persuaded by Duncan’s
evidence of mitigating circumstances. The record supports the
Commission’s finding that employer discharged Duncan for
misconduct connected with work and that Duncan failed to present
sufficient evidence in mitigation. Accordingly, the Commission
did not err in disqualifying him from receiving unemployment

II. Additional Evidence

Duncan made a motion before the Commission
during the appeals process requesting that it consider additional
documentary evidence and witness testimony. Specifically, Duncan
requested that the Commission consider employer’s written policy
pertaining to "operator status" and "excused and
unexcused absences," Duncan’s complete file, including his
employment application and W-4 forms, computerized results from
pre-employment typing tests taken by Duncan, and documentation as
to how employer calculated the rate of pay for employees who
worked on North Carolina claims and for employees who worked on
Virginia claims. In addition, Duncan requested that several
co-workers be called to testify regarding hiring procedures,
production, and pay issues.

The Commission denied Duncan’s request, finding
that he had not satisfied the criteria contained in 16 VAC
5-80-30(B) for the receipt of additional evidence. Specifically,
the Commission found that the additional evidence was not
material to the substantive issues in the case, or if received,
would not have been likely to produce a different result, and the
record prepared by the Appeals Examiner was sufficient to enable
the Commission to make proper, accurate, and complete findings of
fact and conclusions of law.

The Commission’s findings and conclusions are
fully supported by the record. Regardless of whether the
commission ruled on the admissibility of the evidence in question
during the initial stages of the proceedings or during the
appeals process, we find that the Commission did not abuse its
discretion in refusing to consider the evidence. The additional
evidence was not material, relevant, or necessary to the
Commission’s decision on the substantive issues in this case.
Moreover, even if received, the additional evidence would not
have likely produced a different result. Accordingly, the
commission did not err in refusing to consider it.

III. Fraud/Due
Process/Incomplete Record

We find no basis in fact or law for Duncan’s
unsubstantiated allegations that the decisions of the circuit
court or the Commission’s Deputy, Appeals Examiner, or Special
Appeals Examiner were somehow procured by fraud or deceit, or
that the circuit court’s or the Commission’s employees and judges
were somehow biased against Duncan or predisposed to rule in
favor of employer. In addition, we find no merit in his argument
that "the file [or record] is ‘incomplete’" or that he
was denied due process of the law. On the contrary, Duncan and
employer were afforded a reasonable opportunity for a full and
fair evidentiary hearing on his claim for unemployment benefits
pursuant to the procedures established by statutes and

For these reasons, the judgment of the circuit
court is affirmed.



[1] Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.

[2] Duncan’s opening brief contains a great deal of
argument and numerous issues presented for consideration, many of
which concern matters that are not relevant or proper for
consideration by this Court on appeal. Accordingly, we have
narrowed the issues which we will consider on appeal to those
considered by the Commission and the circuit court. In addition,
in rendering our decision we considered only that evidence which
is in the record and was properly before the Commission when it
rendered its decision.

[3] We deny the Commission’s
motion to dismiss Duncan’s appeal.



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