Ben K. Gavie v. Virginia Employment Commission and AGC Field Operations, LLC ( 2009 )


Menu:
  •                                COURT OF APPEALS OF VIRGINIA
    Present: Judges Kelsey, Petty and Senior Judge Bumgardner
    BEN K. GAVIE
    MEMORANDUM OPINION *
    v.     Record No. 0246-09-4                                         PER CURIAM
    JULY 7, 2009
    VIRGINIA EMPLOYMENT COMMISSION AND
    AGC FIELD OPERATIONS, LLC
    FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
    Mary Grace O’Brien, Judge
    (Ben K. Gavie, pro se, on brief).
    (William C. Mims, Attorney General; Elizabeth B. Peay, Assistant
    Attorney General, on brief), for appellee Virginia Employment
    Commission.
    No brief for appellee AGC Field Operations, LLC.
    Ben K. Gavie appeals the October 15, 2008 decision by the circuit court affirming a decision
    by the Virginia Employment Commission (commission) disqualifying him for unemployment
    compensation due to misconduct. 1 We have reviewed the record and the commission’s opinion and
    find that this appeal is without merit. Accordingly, we affirm for the reasons stated by the
    commission in its final opinion. See Gavie v. AGC Field Operations LLC, Commission Decision
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    1
    The record supports the appeals examiner’s decision that the employer’s witnesses were
    more credible than Gavie. Virginia Employment Comm’n v. Gantt, 
    7 Va. App. 631
    , 635, 
    376 S.E.2d 808
    , 811, aff’d on reh’g en banc, 
    9 Va. App. 225
    , 
    385 S.E.2d 247
     (1989). The record
    supports the appeals examiner’s decision that Gavie violated the employer’s harassment policy
    by making inappropriate comments about a co-worker’s disability. Branch v. Virginia
    Employment Comm’n, 
    219 Va. 609
    , 611, 
    249 S.E.2d 180
    , 182 (1978). The record supports the
    commission’s finding that Gavie failed to show that the evidence could not be presented at the
    appeals examiner’s hearing through the exercise of due diligence. Code § 60.2-622(A); 16 VAC
    5-80-30(B).
    74665-C (July 21, 2006). We dispense with oral argument and summarily affirm because the facts
    and legal contentions are adequately presented in the materials before this Court and argument
    would not aid the decisional process. See Code § 17.1-403; Rule 5A:27.
    Affirmed.
    -2-