                     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



                               - 3 -
          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).



                               - 4 -
     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




                               - 5 -
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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