COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
KAREN L. VANWINKLE
MEMORANDUM OPINION *
v. Record No. 1237-97-2 PER CURIAM
NOVEMBER 10, 1997
VIRGINIA EMPLOYMENT COMMISSION
AND
AMMAR'S, INC.
FROM THE CIRCUIT COURT OF WISE COUNTY
(William B. Harper II; Client Centered Legal
Services of Southwest Virginia, Inc., on
briefs), for appellant.
(Richard Cullen, Attorney General; John Paul
Woodley, Jr., Deputy Attorney General;
Richard L. Walton, Jr., Senior Assistant
Attorney General; James W. Osborne, Assistant
Attorney General, on brief), for appellee
Virginia Employment Commission.
(Agnis Chakravorty; The Center for Employment
Law, P.C., on brief), for appellee Ammar's,
Inc.
Karen L. Vanwinkle contends that the trial court erred in
affirming a decision of the Virginia Employment Commission
(commission) which disqualified her from receiving unemployment
benefits, on the ground that she was discharged from her
employment for misconduct connected with work under Code
§ 60.2-618(2). Upon reviewing the record and briefs of the
parties, we conclude 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) (quoting Code § 60.2-625(A)).
"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 Servs., Inc. v. Virginia
Employment Comm'n, 24 Va. App. 377, 383, 482 S.E.2d 841, 844
(1997) (quoting Virginia Employment Comm'n v. Peninsula Emergency
Physicians, Inc., 4 Va. App. 621, 626, 359 S.E.2d 552, 554,
1987)).
So viewed, the evidence proved that Vanwinkle worked as a
cashier for Ammar's, Inc., t/a Magic Mart Stores, from April 15,
1993, through July 7, 1995. On July 6, 1995, Vanwinkle was
ringing up items being purchased by Gena Taylor when a dispute
arose concerning some cigarette lighters. Taylor felt that
Vanwinkle was being rude to her and twice cursed Vanwinkle.
Assistant Manager Kyle Fletcher was assisting other customers
when he overheard Vanwinkle tell Taylor, "I'll let you speak with
the manager if you'd like." Vanwinkle then activated a "Code
Orange," signifying verbal abuse by a customer.
When Fletcher approached, Vanwinkle advised him that Taylor
had cursed her. When Fletcher attempted to obtain Taylor's
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version of what happened, Vanwinkle continuously interrupted,
telling Fletcher, "it's your job to just have her go ahead and
leave the store," and "[t]ell her to get out." Vanwinkle told
Taylor that she would be finishing her shift soon and asked if
Taylor "wanted to discuss this outside." Vanwinkle also grabbed
the purchase money from Taylor's hand stating, "give me that
money." Fletcher several times asked Vanwinkle "will you please
let me get the facts of what's going on." During this period of
time, there were other customers and employees nearby.
After Taylor departed the store, Vanwinkle continued to tell
Fletcher how he should have handled the situation. Shortly
thereafter, an employee advised Fletcher that Taylor wished to
speak with him. While Fletcher was talking to Taylor outside of
the store, Vanwinkle exited the store. Vanwinkle and Taylor
began to exchange words, and Fletcher told Vanwinkle to go home.
The customer blew smoke from her cigarette in the direction of
Vanwinkle's face and, when she threw her cigarette to the ground,
Vanwinkle stated, "that's littering."
The commission further found that
[t]he assistant manager then told [Vanwinkle]
to go home and as she was walking to her car,
the customer called her a "piece of white
trash" and a "slut." [Vanwinkle] asked the
assistant manager if they could discuss the
matter in the office and he said they would
discuss it tomorrow. As [Vanwinkle] was
walking to her car, she pointed to her
buttocks and said to the customer, twice,
"kiss this." . . . .
After [Vanwinkle] got in her car, she
drove to where the assistant manager and the
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customer were standing and again stated that
if they were going to continue to discuss the
matter she needed to be in on it, and she
requested a meeting. The assistant manager
again told her they would discuss it
tomorrow.
The following day, after consulting with her home office,
store manager Theresa Jones discharged Vanwinkle. On May 27,
1995, just six weeks earlier, Jones and Fletcher had warned
Vanwinkle, following an incident involving a price check, that
she needed to act more professionally with customers and
co-workers.
Code § 60.2-618(2) provides that a claimant will be
disqualified from receiving unemployment benefits if she 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. We have previously held that
insubordination can constitute misconduct connected with work.
See Wood v. Virginia Employment Comm'n, 20 Va. App. 514, 518-19,
458 S.E.2d 319, 321 (1995).
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Vanwinkle's insubordination and exacerbation of the conflict
with Taylor demonstrated a deliberate disregard for the interests
of her employer. In the presence of Taylor and other customers,
she interfered with Fletcher's attempts to resolve the situation
by continually interrupting him and telling him how he should be
handling the matter. She implicitly threatened the customer by
asking if Taylor wanted to "discuss this outside."
Once the customer had left the store, instead of proceeding
directly to her car and going home, Vanwinkle again interjected
herself into the conversation Fletcher was having with Taylor.
She made a rude gesture to the customer and, after Fletcher again
told her to go home, again tried to intervene in the
conversation. Accordingly, the evidence contained in the record
supports the commission's finding that Vanwinkle'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).
While Vanwinkle was subjected to abusive language by Taylor,
this did not grant her license to interfere with Fletcher's
attempts to resolve the matter. Her behavior also tended to
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inflame the conflict with Taylor. Further, once the customer was
outside of the store, Vanwinkle intentionally placed herself in a
position where she could be provoked. The record supports the
commission's finding that Vanwinkle presented insufficient
evidence of mitigating circumstances. Accordingly, the
commission did not err in disqualifying her from receiving
unemployment benefits.
Affirmed.
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