COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
NORMAN H. HALE
MEMORANDUM OPINION *
v. Record No. 1071-98-3 PER CURIAM
NOVEMBER 24, 1998
SOUTHWEST SANITATION CO., INC.
AND
VIRGINIA EMPLOYMENT COMMISSION
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Donald R. Mullins, Judge
(Martin Wegbreit; Client Centered Legal
Services of Southwest Virginia, Inc., on
briefs), for appellant.
(Mark L. Earley, Attorney General; James W.
Osborne, Assistant Attorney General, on
brief), for appellee Virginia Employment
Commission.
No brief for appellee Southwest Sanitation,
Co., Inc.
Norman H. Hale contends that the trial court erred in
affirming a decision of the Virginia Employment Commission
("commission"). The commission disqualified him from receiving
unemployment benefits on the ground that he was discharged from
his employment for misconduct connected with work under Code
§ 60.2-618(2). Upon reviewing the record and briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the circuit court's decision.
See Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
"Initially, we note that in any judicial proceedings `the
findings of the commission 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.'" Israel v. Virginia Employment Comm'n, 7 Va. App. 169,
172, 372 S.E.2d 207, 209 (1988) (citation omitted). "In accord
with our usual standard of review, we `consider the evidence in
the light most favorable to the finding by the Commission.'"
Wells Fargo Alarm Services, Inc. v. Virginia Employment Comm'n,
24 Va. App. 377, 383, 482 S.E.2d 841, 844 (1997) (citation
omitted).
So viewed, the evidence proved that Hale worked as a truck
driver for Southwest Sanitation, Co., Inc., from March 1, 1992
through June 15, 1993. He collected garbage for Southwest's
residential and commercial customers, and his job duties included
emptying garbage cans into his dump truck.
After receiving complaints from customers about unbagged
trash being left in garbage cans, Southwest's owner, Arnold
Booth, instructed Hale to completely empty the cans, bagging any
loose trash if necessary. Booth told Hale that Southwest would
provide him with bags if he did not want to dump loose trash into
his truck. When Hale refused to empty customers' loose garbage
into his truck, or to bag that loose trash, Booth discharged him.
Booth testified that customers are requested to bag all
garbage, although they do not always do so. Most customers bag
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all their trash. Southwest will not provide service for
customers throwing out hazardous waste.
Hale was fined by the courts several times for allowing
litter to escape from his truck, and he was on probation at the
time of his discharge. Hale testified that he did not want to
collect loose trash because it had a tendency to blow out of the
truck, and he did not want to violate his probation. He objected
to bagging customers' loose garbage because he felt that it was
unsanitary. Southwest equipped Hale's truck with a tarpaulin to
cover the back of the truck to prevent garbage from escaping.
Code § 60.2-618(2) provides that a claimant will be
disqualified from receiving unemployment benefits if he is
discharged from employment for misconduct connected with work.
[A]n 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.
Branch v. Virginia Employment Comm'n, 219 Va. 609, 611, 249
S.E.2d 180, 182 (1978). "Whether an employee's behavior
constitutes misconduct, however, is a mixed question of law and
fact reviewable by this court on appeal." Israel, 7 Va. App. at
172, 372 S.E.2d at 209. Insubordination, that is, a deliberate
refusal to comply with a supervisor's instructions, can
constitute misconduct connected with work. See Wood v. Virginia
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Employment Comm'n, 20 Va. App. 514, 518-19, 458 S.E.2d 319, 321
(1995).
Hale's outright refusal to follow Booth's instructions to
completely empty customers' cans, bagging loose trash if
necessary, demonstrated a deliberate disregard for Southwest's
business interests. This conclusion is underscored by evidence
of the recent complaints Southwest received from its customers.
Credible evidence supports the commission's finding that Hale's
actions constituted insubordination and a prima facie case of
misconduct connected with work.
"Once the employer has borne the burden of showing
misconduct connected with the work, . . . the burden shifts to
the employee to prove circumstances in mitigation of his or her
conduct." 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).
Evidence of mitigation may appear in many
forms which, singly or in combination, to
some degree explain or justify the employee's
conduct. Various factors to be considered
may include: the importance of the business
interest at risk; the nature and purpose of
the rule; prior enforcement of the rule; good
cause to justify the violation; and
consistency with other rules.
Id.
We cannot say that the commission erred in finding that Hale
failed to meet his burden of proving mitigating circumstances.
Garbage pick up, by its very nature, can be unsanitary, and Hale
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could have worn gloves or other protective clothing when
necessary. Hale also failed to prove that his employer's
instructions were unreasonable, or unduly jeopardized his health
or safety. Accordingly, the commission did not err in
disqualifying Hale from receiving unemployment benefits. 1
Affirmed.
1
Hale asserts in his brief that this case should have been
decided as a work refusal under Code § 60.2-618(3). He did not,
however, present this argument either to the commission or the
trial court. Accordingly, we will not address it for the first
time on appeal. See Rule 5A:18. Moreover, Code § 60.2-618(3)
only applies in situations where an individual refuses an offer
of work once he is unemployed. It is inapplicable to separations
from employment.
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