Trevor D. Williams v. Virginia Employment Commission and Manpower International

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Alston, Decker and Senior Judge Willis
TREVOR D. WILLIAMS
MEMORANDUM OPINION*
v. 	Record No. 2376-13-4 	PER CURIAM
JUNE 10, 2014
VIRGINIA EMPLOYMENT COMMISSION
AND MANPOWER INTERNATIONAL
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
John M. Tran, Judge
(Trevor D. Williams, pro se, on brief).
No brief for appellees.
Trevor D. Williams (hereinafter “appellant”) appeals the trial court’s ruling affirming a
decision by the Virginia Employment Commission (hereinafter “VEC”) finding appellant was
disqualified from receiving unemployment compensation benefits because he was discharged for
misconduct in connection with his work.
Appellant raises two assignments of error of appeal. First, he contends the trial court
committed reversible error “by disregarding the mitigating circumstances.” Second, he asserts
the trial court erred by “holding [him] to the same unemployment disqualification standards that
the court has done [sic] with managerial and/or supervisor positions.” Appellant has failed to
demonstrate that he presented these issues below. Rule 5A:18. Therefore, we summarily affirm
the decision of the trial court. Rule 5A:27.
Background
Appellant was employed by a staffing agency, and in June of 2009 was assigned to work
for one of the agency’s clients as a data entry specialist. The agency had a policy that it could
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
UNPUBLISHED

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discipline and/or terminate an employee who misrepresented the number of hours worked.
Appellant acknowledged the existence of this policy with his signature on March 13, 2003 as
noted in the Virginia Employment Commission’s decision.
Over the weekend of November 3-4, 2012, appellant obtained approval from the client to
work from his home. However, because his access code to the client’s proprietary database
expired on Friday, November 2, 2012, appellant discovered on November 3, 2012, he was unable
to access the database. Appellant contacted the client’s help desk, but it could not restore access
that weekend. Despite his inability to perform his primary job function, appellant billed eleven
hours to the client. On Monday, November 5, 2012, appellant reported he had lost access to the
database, and access was restored on November 8, 2012.
On December 12, 2012, the client’s on-site supervisor questioned appellant about the
time he had billed on November 3rd and 4th, and asked appellant to document his activity. Later
that day, appellant consulted with his agency to ascertain if the client had been in touch with the
agency. He provided no details to the agency about his discussion with the client supervisor, but
did acknowledge he had no access to a “particular system.”
The following week, on December 18, 2012, the client notified the agency it believed
appellant had falsified his hours because he did not have access to the database necessary to
perform his work, and he had failed to produce any evidence verifying he had performed work
for the client as indicated on his time entries. The next day, the agency spoke with appellant and
asked him why he had not produced documentation supporting his time entries. Appellant
replied, “[b]ecause I deleted everything. I don’t have anything to show her.”
The agency terminated appellant’s employment.

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Analysis
In the first assignment of error, appellant contends that he argued to the trial court “that
his call to the help desk coupled with the meeting with his manager[] were both mitigating
factors.” In support of this argument, appellant cites the following language from Branch v.
Virginia Emp’t Comm’n, 219 Va. 609, 249 S.E.2d 180 (1978):
In our view, an 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. Absent
circumstances in mitigation of such conduct, the employee is
“disqualified for benefits”, and the burden of proving mitigating
circumstances rests upon the employee.
Id. at 611, 249 S.E.2d at 182 (citations omitted).
Appellant, however, does not cite the portion of the record in which he presented this
argument to the trial court. Furthermore, in the petition for judicial review filed by appellant in
the trial court, he argued he was terminated without adequate investigation into whether he
actually performed services supporting the time cards he submitted. His only other argument
was that the “[a]ppeals [e]xaminer wrongfully concluded that [he] had been discharged for
misconduct connected with work.” Appellant asserted “[t]his is in spite of the facts clearly
indicating that [he] committed no work place misconduct and actually worked on behalf of
Manpower and his assigned company during the affected period.” He did not specifically argue
that mitigating circumstances justified his misconduct. Accordingly, appellant has failed to
preserve this issue for our consideration on appeal. See Rule 5A:18. Under Rule 5A:18, the
“same argument must have been raised, with specificity, at trial before it can be considered on
appeal.” Correll v. Commonwealth, 42 Va. App. 311, 324, 591 S.E.2d 712, 719 (2004).

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Likewise, with respect to the second assignment of error, appellant cites nothing in the
record indicating he presented this argument to the trial court, and we find nothing in his petition
for review before the trial court indicating this argument was made below. Accordingly,
appellant has also failed to preserve this assignment of error for our consideration. Pursuant to
Rule 5A:18, we “will not consider an argument on appeal [that] was not presented to the trial
court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
Thus, we dispense with oral argument and summarily affirm because the facts and legal
contentions are adequately presented in the materials before the Court and argument would not
aid the decisional process. See Code § 17.1-403; Rule 5A:27.
Affirmed.