Calvary Memorial Park, Inc., etc.v VEC & Francone

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Elder and Bumgardner
Argued at Alexandria, Virginia
CALVARY MEMORIAL PARK, INC.,
T/A FAIRFAX MEMORIAL PARK
MEMORANDUM OPINION* BY
v. 	Record No. 1730-98-4 	JUDGE SAM W. COLEMAN III
JUNE 29, 1999
VIRGINIA EMPLOYMENT COMMISSION and
CHRISANTHE FRANCONE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Jr., Judge
Michael H. Doherty (Holmes, Rosenberg &
Doherty, P.C., on briefs), for appellant.
Gaye Lynn Taxey, Assistant Attorney General;
Andrew B. Golkow (Mark L. Earley, Attorney
General; William A. Diamond, Assistant
Attorney General; Rees, Broome & Diaz, P.C.,
on briefs), for appellees.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Calvary Memorial Park, Inc. (Calvary) appeals the circuit
court order affirming the Virginia Employment Commission's (VEC)
award of unemployment benefits to Chrisanthe Francone. 	Calvary
asserts that Francone was disqualified by virtue of Code
§ 60.2-618(2) from receiving unemployment benefits because she was
discharged from her employment for misconduct. 	Calvary argues
that the evidence did not support the VEC's findings of fact and

that the VEC's decision was contrary to the law. 	Finding no
error, we affirm.
BACKGROUND
On appeal, we consider the evidence in the light most
favorable to the finding of the commission. 	See Wells Fargo Alarm
Services, Inc. v. Virginia Employment Comm'n, 24 Va. App. 377,
383, 482 S.E.2d 841, 844 (1997).
So viewed, the evidence established that Francone worked as a
family services counselor selling burial plots for Calvary.
Calvary paid Francone by commissions earned from "pre-need" burial
plot sales. 	A "pre-need" sale refers to the sale of a plot to a
customer for future use. 	On "pre-need" sales, the customer
received a 10 percent discount on the cost of the plot and the
family service counselor earned an 18 percent commission. 	An
"at-need" sale refers to the sale of a plot to a customer for
immediate interment. 	On "at-need" sales, the customer received no
discount and the family service counselor earned no commission.
Francone had frequently expressed disagreement with Calvary over
its refusal to pay commissions on "at-need" sales.
Houng Ly spoke with Francone about buying a plot from Calvary
to bury his recently-deceased sister. 	Francone referred Ly to
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family service counselor Patricia Farmer.1 Ly already owned two
adjacent plots at Calvary but wanted to reserve those plots for
burial of his parents. 	There were no available plots adjacent to
Ly's pre-owned plots.
The contract of sale expressly permitted Ly to exchange and
receive credit for the value of the two pre-owned plots against
any plots of equal or greater value. 	However, rather than
exchange a plot, Ly wanted to retain the plots he owned.
Therefore, Ly purchased a non-adjacent plot in which to bury his
sister. 	Farmer drafted the contract as an "at-need" sale.
Later that day, Francone saw the Ly contract and suggested to
Farmer that the transaction should have been treated as a
"pre-need" sale by allowing Ly to exchange one of his existing
plots for a plot for his sister and then allowing Ly to repurchase
the original plot. 	This would entitle Ly to a discount on his
purchase and would entitle Francone to a commission on her sale.
Farmer replied that Francone's proposal was not the correct way to
structure the sale. 	Francone discussed the matter with another
family services counselor. 	They concluded that the sale could be
treated as "pre-need."
1The family service counselors work on a rotating schedule.
Each day one counselor receives all the commissions from the
business transacted that day. 	Thus, although Farmer completed
Ly’s paperwork, any commission from that sale belonged to
Francone.
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Francone contacted Ly and had him return to Calvary to revise
the contract. 	With Ly's approval, Francone restructured the
agreement so that Ly exchanged one of his existing burial plots
for his sister's new plot. 	Francone then resold to Ly the burial
plot that he had exchanged, which resulted in a discount for Ly
and a commission for Francone.
Francone submitted the revised contract to Calvary. 	When
Calvary's president discovered the Ly contract, he discharged
Francone for violating a company rule and for defrauding the
company. 	Calvary asserts that the rule is stated in the
employment contract which expressly provides that commissions and
discounts are paid only on "pre-need" sales and not on "at-need"
sales.
Although its policies allowed customers credit for the value
of pre-owned burial plots exchanged for plots of the same or
greater value, the policies necessarily did not allow the type of
transaction in which Francone engaged. 	Calvary had neither a
progressive disciplinary process nor an employee handbook that
expressly proscribed such procedures.
ANALYSIS
Code § 60.2-618(2) disqualifies a claimant from receiving
unemployment benefits when discharged for misconduct connected
with work.
[A]n employee is guilty of "misconduct
connected with his work" when he
deliberately violates a company rule
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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).
The statutory term "misconduct" should not
be so literally construed so as to effect a
forfeiture of benefits by an employee except
in clear instances; rather the term should
be construed in a manner least favorable to
working a forfeiture so as to minimize the
penal character of the provision by
excluding cases not clearly intended to be
within the exception.
Kennedy's Piggly Wiggly Stores, Inc. v. Cooper, 14 Va. App. 701,
707-08, 419 S.E.2d 278, 282 (1992) (quoting 76 Am. Jur. 2d
Unemployment Compensation § 77 (1992)).
"[T]he findings of the Commission as to the facts, if
supported by the evidence and in the absence of fraud, shall be
conclusive, and the jurisdiction of the court shall be confined
to questions of law." 	Code § 60.2-625; see Lee v. Virginia
Employment Comm'n, 1 Va. App. 82, 85, 335 S.E.2d 104, 106
(1985). 	However, whether an employee's conduct constitutes
misconduct is a mixed question of law and fact. 	See Israel v.
Virginia Employment Comm'n, 7 Va. App. 169, 172, 372 S.E.2d 207,
209 (1988).
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The evidence supports the VEC's finding that Calvary had
no rule prohibiting the transaction that Francone structured for
Ly. 	Although Calvary's administrator and Farmer testified that
Francone's transaction violated the sales staff's professional
standards, neither identified a rule that prohibited Francone's
action or would have put Francone on notice that the Ly contract
was prohibited by the cemetery's policy. 	Although Francone's
employment contract provided that she would not receive a
commission for "at-need" sales, the employment contract did not
explicitly proscribe or prohibit the transaction. 	In fact, by
providing for a customer discount and sales commission for
"pre-need" sales, the contract encouraged sales persons to
structure sales, if possible, as "pre-need" sales.
Additionally, Calvary acknowledged that Ly could have
purchased a third plot as a "pre-need" sale if he had buried his
sister in one of the pre-owned plots, even though the purchase
was being made to accommodate an immediate need for a burial
plot. 	Calvary also conceded that had the exchange taken place
on one day and the repurchase have taken place on the next day,
it would not have considered the transaction a violation of its
policy. 	For the foregoing reasons, we find that the VEC did not
err in ruling that Francone did not "deliberately violate[] a
company rule." 	See Branch, 219 Va. at 611, 249 S.E.2d at 182.
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Having determined that Francone did not deliberately violate
Calvary's rule, our consideration turns to whether Francone's
actions manifested a willful disregard of Calvary's best interests
and the duties that Francone owed Calvary. 	See Kennedy's Piggly
Wiggly, 14 Va. App. at 705, 419 S.E.2d at 281. 	By awarding
commissions on "pre-need" sales, and by making "pre-need" sales
advantageous to customers, Calvary created incentives for
counselors to make "pre-need" sales which would benefit both the
customer and family service counselors. 	In this situation, the
type of transaction Francone executed was reasonably foreseeable.
Calvary adopted no rule and had made no express effort to forbid
it. 	Ly had already purchased two plots from Calvary and approved
of Francone's revision of the contract governing his acquisition
of a third plot. 	Although Francone restructured the sale to
maximize her own benefit, the restructuring also benefited a
valued client. 	Under these circumstances, we cannot say as a
matter of law, that Francone willfully disregarded her employer's
interests.
Accordingly, we uphold the VEC's ruling that Francone was
not terminated for misconduct, and we affirm the judgment of the
trial court.
Affirmed.
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