Opinion
Record No. 0198-93-2
October 5, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND THEODORE J. MARKOW, JUDGE.
(David L. Epperly, Jr.; Williams, Butler Pierce, on brief), for appellant.
(Stephen D. Rosenthal, Attorney General; Lisa J. Rowley, Assistant Attorney General, on brief), for appellee Virginia Employment Commission.
No brief for appellee Crestar Bank, Inc.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Louise Poe-Jones (Poe-Jones) appeals the judgment of the circuit court affirming the decision of the Virginia Employment Commission (VEC). The VEC found that suitable employment was offered Poe-Jones while she was still employed by Crestar Bank, Inc. (Crestar) and she refused it without good cause. Accordingly, she was disqualified from receiving unemployment benefits. Code §§ 60.2-618(1) and -618(3). On appeal, she raises two questions: 1) whether the VEC erred in finding that the position offered by Crestar was suitable employment; and 2) whether the VEC erred in finding that she refused the offer without good cause.
Under Code § 60.2-625(A), "the findings of the [VEC] 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." See Shifflett v. Virginia Employment Comm'n, 14 Va. App. 96, 97, 414 S.E.2d 865, 865 (1992). "The VEC's findings may be rejected only if, in considering the record as a whole, a reasonable mind wouldnecessarily come to a different conclusion." Craft v. Virginia Employment Comm'n, 8 Va. App. 607, 609, 383 S.E.2d 271, 273 (1989) (emphasis supplied) (citations omitted). In this instance, Poe-Jones has questioned the VEC's determination of the suitability of the employment offered and her good cause to refuse the position, which "are mixed questions of law and fact reviewable by this court on appeal." Johnson v. Virginia Employment Comm'n, 8 Va. App. 441, 447, 382 S.E.2d 476, 478 (1989) (citations omitted).
I.
The employer bears the burden of proving that the job offered was suitable. Id. "[T]he determination of 'suitability' entails both a subjective and objective examination" of a number of factors including, among others, "the wage, the benefits, the duties, and the conditions intrinsic to a particular job."Id. at 448, 382 S.E.2d at 479. "[U]sually a reasonably comparable wage in a job which utilizes an employee's experience and skills will be the major factors to measure suitability of a job offer."Id. Moreover, "suitable employment is not synonymous with equivalent employment." Id. at 449, 382 S.E.2d at 479.
Poe-Jones was offered a Collector I Position, which was one step lower in grade but at the same pay rate as her existing job and in the same career track as the Collector III Position in which she had previously expressed interest. The offered position was similar in many respects to Poe-Jones' previous position. She possessed the necessary training and experience. After six months of satisfactory performance in the offered position, Poe-Jones could be promoted to the equivalent grade of her previous position, and receive a five percent increase in salary. The wages, hours and other conditions were found by the VEC to be prevailing in the labor market for similar work.
Poe-Jones asserts that the VEC failed to consider the length of unemployment when it determined the suitability of the offered position. Code § 60.2-618(b). We disagree. The VEC's decision specifically notes that Poe-Jones was not unemployed at the time the position was offered and that the length of unemployment is a factor in determining the suitability of the position. Moreover, the length of unemployment tends to lower the range of what is a suitable position. "The longer a claimant remains unemployed, the less justification he or she would have for refusing an offer of substantial employment." Johnson, 8 Va. App. at 449, 382 S.E.2d at 480. Here, we cannot conclude that Poe-Jones was "being required to accept lesser employment" when she was offered "work with a commensurate wage and benefits to [her] previous job." Id. at 449-50, 382 S.E.2d at 480.
Therefore, we cannot say the VEC erred in determining the position offered to Poe-Jones was suitable employment.
II.
Moreover, we cannot say the VEC erred in determining that Poe-Jones lacked good cause when she refused the offered position. "In determining whether 'good cause' existed to refuse an offer of employment, the situation must be viewed from the standpoint of a reasonable employee desirous of obtaining suitable employment. The employee must establish by a preponderance of the evidence that he had justifiable reasons to refuse the offer in light of the particular circumstance."Johnson, 8 Va. App. at 452, 382 S.E.2d at 481 (citing Lee v. Virginia Employment Comm'n, 1 Va. App. 82, 86, 335 S.E.2d 104, 107 (1985)).
Poe-Jones declined the offered position because it was a lower grade and required four hours of overtime a week on evenings and Saturdays, which her previous position did not. She also did not believe she could continue to work in the same department as there had been some disagreements with her supervisor.
However, the wage and benefits were comparable to those Poe-Jones received in her current position. After six months, the grade could be identical and the career track continued to at least one grade higher. While Poe-Jones alleged Crestar did not offer her the position in good faith, the record does not support that allegation. Therefore, we cannot say that the VEC erred when it determined that Poe-Jones did not establish she had good cause in refusing the offered employment.
Accordingly, we affirm the decision of the circuit court.
Affirmed.