Virginia Lawyers Weekly VA Lawyers Weekly
A Fairfax Circuit Court says an employee terminated from his employment at a fitness club is barred by misconduct from collecting unemployment compensation through the Virginia Employment Commission, as he was terminated for his failure to plan and promote a “fight night” charity event at the club.
The issue here is whether there is sufficient evidence in the record to support the VEC’s determination that petitioner was terminated for misconduct. In the instant case, the VEC found petitioner had a duty to assist in planning and executing a fight night charity event and failed to do so. The court finds sufficient evidence to support the VEC’s findings.
Petitioner’s one-page employment contract included a list of four duties and responsibilities, one of which was the following: “you are responsible for creating and executing in house events and promotions for the purpose of driving sales.” Petitioner admits the owner of Marshall Fitness directed him to assist in planning and executing the fight night event. However, several members of the gym told the owner petitioner was not promoting the event. Petitioner was in charge of selling tickets, but the owner learned “ticket sales were way behind.” The record shows petitioner became confrontational when confronted by the owner about the lack of ticket sales. Petitioner also admits he was aware of the owner’s frustration with his failure to promote fight night. Finally, petitioner admits to having knowledge that his reluctance to participate in the planning and execution of fight night might result in his termination, as he said he was worried he would be fired because he wouldn’t take part in fight night.
Petitioner asserts two bases on which he believes his misconduct was justified.
First, he believed fight night was illegal because it was not sanctioned by the state or the relevant boxing association; however, petitioner did not offer evidence that any such sanction was required, nor did he prove he would suffer any consequences if the event occurred without sanction. This court agrees with the VEC that petitioner’s mere assertion that some type of authorization was required, without invoking any authority or proof that such authorization was necessary, is insufficient.
Second, petitioner argued the fitness club owner requested petitioner to sell tickets to the charity event in excess of the building occupancy limit at the facility; however, petitioner failed to show he was required to sell tickets over the applicable occupancy limit, and excess ticket sales does not mean the limit would necessarily have been violated. Petitioner had the ability to proceed with planning the event without being in violation of the fire code, and he failed to do so.
Petition for judicial review is denied.
Novotny v. VEC (Bellows) No. CL 2011-9254, Oct. 4, 2011; Fairfax Cir.Ct.; Johnnie L. Johnson III for petitioner; Elizabeth B. Peay, AAG. VLW 011-8-213, 4 pp.
