                    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




                                - 3 -
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



                               - 4 -
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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