                     COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Overton, and Senior Judge Hodges
Argued at Salem, Virginia


VIDEL C. PIZZINO

v.   Record No. 2958-95-3                     MEMORANDUM OPINION *
                                          BY JUDGE WILLIAM H. HODGES
J. DILLARD HUTCHENS CORP. AND                  SEPTEMBER 17, 1996
 VIRGINIA EMPLOYMENT COMMISSION


            FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                        B. A. Davis, III, Judge
            Barbara Hudson, for appellant.

            Robert L. Morrison, Jr. (Williams, Stilwell,
            Morrison, Williams & Light, on brief), for
            appellee J. Dillard Hutchens Corp.

            Robert L. Walker, Assistant Attorney General
            (James S. Gilmore, III, Attorney General;
            Lisa L. Rowley, Assistant Attorney General,
            on brief), for appellee Virginia Employment
            Commission.



     Videl C. Pizzino appeals a final order of the Circuit Court

of the City of Danville which affirmed the decision of the

Virginia Employment Commission (VEC) to deny unemployment

benefits to Pizzino.    Pizzino was disqualified from receiving

benefits based upon her separation from J. Dillard Hutchens

Corp., t/a Old Dutch Supermarket.     On appeal, Pizzino argues that

the VEC erred in finding that she voluntarily left work without

good cause.    Finding no error, we affirm.



        *
           Pursuant to Code     §   17-116.010   this   opinion   is   not
designated for publication.
                                 I.

     Pizzino was a cashier at the Old Dutch Supermarket, owned by

J. Dillard Hutchens.    Her duties included re-stocking the shelves

on Monday afternoons.   Pizzino had surgery on her back on

March 1, 1994 and, as a result, had several stitches in her back.

At the hearing conducted by the appeals examiner, Pizzino

testified that her doctor advised her to perform "light work"

until March 8, 1994.    Hutchens testified that he was aware

Pizzino recently had surgery and that she had stitches in her

back, but that she never told him she was instructed to perform

only "light duty" and that she did not show Hutchens a doctor's

excuse indicating she could only perform "light work."
     At about noon on March 7, 1994, Hutchens instructed Pizzino

to help re-stock the cereal shelves.   Pizzino replied that she

was not going to re-stock because she was concerned she might

damage her stitches.    Hutchens responded that she "might as well

go home, then."   Pizzino replied, "I can do that," and she

immediately left the store.   Hutchens testified that he did not

intend to discharge Pizzino when he told her that she "might as

well go home."

     When Pizzino did not return to work at 4:00 p.m., as

scheduled, Hutchens telephoned her home to ask if she was coming

to work.   Pizzino refused to speak to Hutchens, and she never

returned to work.

     At the appeals examiner's hearing, Pizzino first claimed




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that her separation was prompted by sexual harassment.    Hutchens

denied most of her sexual harassment allegations, except he

acknowledged that he did "tap her on the butt and keep walking"

when she leaned over while re-stocking shelves.   Hutchens

testified that Pizzino would respond, "You fool, you," and that

she did not tell him to stop.   Pizzino testified that she did

"warn[] him several times to stop."   Two other employees

testified that Pizzino never complained to them about sexual

harassment by Hutchens.   Hutchens also testified that Pizzino

engaged in sexually suggestive conduct.
                               II.
          "On review, [we] must consider the evidence
          in the light most favorable to the finding by
          the Commission." Code § 60.2-625 sets forth
          the standard of "judicial review" for appeals
          from the decisions of the VEC. "[I]n such
          cases . . . the Commission's findings of
          fact, if supported by evidence and in the
          absence of fraud, are conclusive." The VEC's
          findings of fact need only be "supported by
          evidence" for them to be binding on appeal,
          unless we conclude that no evidence supports
          the findings or that they were obtained by
          fraud.


Bell Atl. Network Servs. v. Virginia Employment Comm'n, 16 Va.

App. 741, 745, 433 S.E.2d 30, 32 (1993) (citations omitted).

     Pizzino alleged physical limitations that rendered her

unable to re-stock the shelves.   However, Pizzino did not inform

Hutchens of her doctor's advice that she perform only "light

work," and she did not provide him with a note from her doctor

containing this instruction.    Although she had recent surgery,




                                  3
she had worked as a cashier for several days after the surgery

and before the incident.    She had not expressed limitations in

her abilities to work.

     Moreover, Hutchens did not "order" Pizzino to go home, fire

her, or tell her never to return to work after the incident.

Hutchens did not intend to terminate Pizzino when he told her she

could go home.    Pizzino's actions severed the employment

relationship.    She voluntarily left work without further

explanation of her medical condition and then refused to speak

with Hutchens when he called her later that day.    She did not

explain to Hutchens that she was only able to perform her duties

as a cashier.    Thus, Pizzino did not "pursue every available

avenue open to [her] whereby [she] might alleviate or correct the

conditions of which [she] complain[ed] before relinquishing [her]

employment."     See Lee v. Virginia Employment Comm'n, 1 Va. App.

82, 85, 335 S.E.2d 104, 106 (1985).    "[A] claimant must take all

reasonable steps to resolve [her] conflicts with [her] employer

and retain [her] employment before voluntarily leaving that

employment."     Umbarger v. Virginia Employment Comm'n, 12 Va. App.

431, 435, 404 S.E.2d 380, 383 (1991).

     The Commission also found that Hutchens did not sexually

harass Pizzino.    This finding is supported by the evidence that

when Hutchens tapped Pizzino on the posterior, she did not

indicate the behavior was unwanted or offensive.    She never

complained to other employees that Hutchens sexually harassed




                                   4
her.   There was evidence presented that she participated in

sexually suggestive bantering among the employees.    Moreover, as

stated by the VEC, the fact that Pizzino did not mention sexual

harassment as a basis for her separation until she testified at

the appeals examiner's hearing "tend[ed] to diminish the

significance of this allegation."     Thus, because the finding of

no sexual harassment is supported by evidence in the record, it

is binding on this Court.    See Code § 60.2-625.
       For the above-stated reasons, we find no error in the trial

judge's order affirming the decision of the VEC denying

unemployment benefits to Pizzino.     Accordingly, we affirm.

                                                     Affirmed.




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