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Smith v. S. W. Rodgers Co., Inc., 99 Vap UNP 0003994 (1999)

Practice Area: Sexual harassment

Outcome: Appealed

Description: IN THE COURT OF APPEALS OF VIRGINIA HEATHER R. SMITH v. S. W. RODGERS COMPANY, INC. AND VIRGINIA EMPLOYMENT COMMISSION Record No. 0003-99-4 Decided: July 20, 1999 Present: Judges Benton, Coleman and Willis FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, F. Bruce Bach, Judge Affirmed. COUNSEL (Paul McGlone, on brief), for appellant. No brief for appellee S. W. Rodgers Company, Inc. MEMORANDUM OPINION* PER CURIAM: The Special Examiner found as follows: In 1996, one of [Smith's] supervisors grabbed her rear end and pinched her and [Smith] responded by punching him in the stomach. The supervisor did not repeat that conduct. [Smith] complained to one supervisor about the other, but she did not take her complaints to higher management. On or about September 16, 1997, one of the supervisors grabbed [Smith's] breast and she pushed him away. A short time later, the other supervisor pulled up in his vehicle and made a comment about [Smith's] rear end. Following the September 16th incident, Smith went to the owner's office to report this incident to the owner. The owner was unavailable.When Smith met with the personnel director and explained what had happened, the personnel director told her that she should have sought redress from him sooner. The Special Examiner found the following: The personnel director assured [Smith] that he would speak to the supervisors involved. He also told [Smith] that he would arrange to assign her to a job where she would not have contact with the supervisors. The personnel director and Smith then spoke to the dispatcher, who advised Smith to report to work on September 19, 1997. The dispatcher agreed to allow Smith to report on September 22, 1997. The commission denied Smith's application for unemployment benefits. On this appeal, Smith contends the trial court erred in affirming the ruling of the commission. She argues that the work environment was so hostile that she could not reasonably be expected to return to work. Code § 60.2-618(1) states that: “An 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. [W]e [have previously] considered the requirement of “good cause” in the context of an employee who voluntarily leaves employment and stated: “[B]efore relinquishing . . . employment . . . the claimant must have made every effort to eliminate or adjust with [the] employer the differences or conditions of which [the claimant] complains. In other words, a claimant must take all reasonable steps to resolve . . . conflicts with [the] employer and retain [that] employment before voluntarily leaving that employment. The record establishes that Smith had a legitimate complaint regarding her employment. The conduct of her supervisors was deplorable and unacceptable. Nevertheless, When Smith sought to register her complaint, the personnel director met with her and responded with action. Despite the personnel director's assurance that he would speak to the supervisors and that he would transfer her to another job site where she would no longer come into contact with the two supervisors, Smith quit. The record supports the commission's finding that Smith voluntarily quit her position without good cause. There was no evidence that the transfer offered to Smith was to a less advantageous assignment. The personnel director stated he would speak to the supervisors about their conduct. We cannot say that the commission improperly concluded that Smith's need for assurance was not “a reasonable expectation under the circumstances.” Accordingly, the commission did not err in disqualifying her from receiving unemployment benefits. Affirmed

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