                      COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Humphreys and Retired Judge Duff ∗


SAMUEL T. BISTAWROS
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 2207-00-4                        PER CURIAM
                                              FEBRUARY 20, 2001
VIRGINIA EMPLOYMENT COMMISSION AND
 MINNIELAND PRIVATE DAY SCHOOL


           FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                      William D. Hamblen, Judge

           (Samuel T. Bistawros, on briefs), pro se.

           (Mark L. Earley, Attorney General; Lisa J.
           Rowley, Assistant Attorney General; Paul S.
           Stahl, Assistant Attorney General, on brief),
           for appellee Virginia Employment Commission.

           No brief for appellee Minnieland Private Day
           School.


     Samuel T. Bistawros appeals a final order of the Circuit

Court of Prince William County affirming the decision of the

Virginia Employment Commission (VEC) to disqualify him from

receiving unemployment benefits.     Based upon the administrative

record of proceedings and argument, the circuit court held that

evidence in the record supported the VEC's findings of fact and


     ∗
       Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400(D).
     ∗∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
that the VEC correctly concluded, as a matter of law, that

Bistawros was discharged for misconduct in connection with his

work for Minnieland Private Day School and disqualified for

benefits under Code § 60.2-618.2.

                    I.   VEC'S FACTUAL FINDINGS

     The record establishes that Bistawros worked as a teacher

for Minnieland from March 22, 1999 to December 28, 1999.

Minnieland contracts with the Prince William County Public

Schools to provide before-and-after-school care for children.

Minnieland's employment handbook provides that employees may be

dismissed without warning for insubordination and with warning

for using threatening language.    On September 30, 1999,

Bistawros was involved in an argument with the site director of

the school to which he was assigned.     Bistawros accused the

director of practicing witchcraft on him.    The next day,

Bistawros' supervisor met with Bistawros to discuss the problem

and told Bistawros that the site director felt threatened by the

accusations.   The supervisor explained that Bistawros would be

transferred to another school.    Because there was not one school

to which he could be assigned, Bistawros was assigned to one

school in the morning and another in the afternoon.

     On October 6, 1999, Bistawros' supervisors met with him

after having received a complaint from one of the schools that

Bistawros was talking on the phone when he was assigned to


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supervise children.   During that meeting, Bistawros was told not

to discuss witchcraft at work.    On December 20, 1999, Bistawros

accused a school custodian of practicing witchcraft.      Minnieland

discharged Bistawros for talking about witchcraft despite direct

orders not to and for confronting school personnel when he had

been instructed to bring his concerns to Minnieland if he was

having problems.

     "On review, [we] must consider the evidence in the light

most favorable to the finding by the Commission."       Virginia

Employment Comm'n v. Peninsula Emergency Physicians, Inc., 4 Va.

App. 621, 626, 359 S.E.2d 552, 554-55 (1987).      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."     Lee v. Virginia

Employment Comm'n, 1 Va. App. 82, 85, 335 S.E.2d 104, 106

(1985).   Upon our review, we conclude that the VEC's findings of

fact are supported by evidence in the record and are therefore

binding on appeal.

                      II.   WORKPLACE MISCONDUCT

     Code § 60.2-618.2 provides for disqualification from

receipt of unemployment benefits if the VEC finds that the

employee was discharged for work misconduct.       "However, to

establish misconduct employer had the burden of proving that the


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employee deliberately or willfully violated a company rule."

Bell Atlantic v. Matthews, 16 Va. App. 741, 745, 433 S.E.2d 30,

32 (1993).

             [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).    "'[O]nce the employer has borne [this]

burden . . . [it] shifts to the employee to prove circumstances

in mitigation of his or her conduct.'"     Carter v. Extra's, Inc.,

14 Va. App. 535, 539, 420 S.E.2d 713, 715 (1992) (citation

omitted).    "'Whether an employee's behavior constitutes

misconduct, however, is a mixed question of law and fact

reviewable by this court on appeal.'"     Wells Fargo Alarm Servs.,

Inc. v. Virginia Employment Comm'n, 24 Va. App. 377, 384, 482

S.E.2d 841, 844 (1997) (citation omitted).

     Bistawros was discharged for accusing his co-workers of

practicing witchcraft.    Bistawros had been warned by his

supervisor that the licensing agency for daycare programs had

expressed concerns about his earlier accusation.    He was also

warned that further discussions of witchcraft or voodoo could



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lead to his discharge.   The VEC concluded that Bistawros'

actions had been insubordinate and amounted to misconduct.

     "An employee's refusal to obey a reasonable directive of

his or her employer may constitute misconduct so as to

disqualify that employee from unemployment benefits."    Helmick

v. Economic Dev. Corp., 14 Va. App. 853, 859, 421 S.E.2d 23, 26

(1992).   Indeed, 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).   Bistawros' violation of a direct command not

to discuss witchcraft in the schools constituted misconduct.

     Although Bistawros was instructed to contact Minnieland

first with complaints of this nature, Bistawros yelled at a

school janitor in front of school officials.   Bistawros'

insubordinate refusal to obey a reasonable directive constituted

misconduct.

                           IV.   MITIGATION

     "[T]he burden of proving mitigating circumstances rests

upon the employee."    Kennedy's Piggly Wiggly Stores v. Cooper,

14 Va. App. 701, 705, 419 S.E.2d 278, 280-81 (1992).    "Absent

evidence to 'explain or justify' such misconduct and 'show

mitigating circumstances, the commission must find that benefits

are barred.'"   Carter, 14 Va. App. at 540, 420 S.E.2d at 716

(citations omitted).   In mitigation, Bistawros makes accusations


                                 - 5 -
of fraud, prejudice, and conspiracy.   Bistawros argues that he

was the victim of witchcraft performed by Minnieland in

conjunction with Egyptian intelligence.   However, Bistawros

provides no factual basis for the allegations and does not point

to any evidence to support his contention that the VEC and the

circuit court were biased against him.    The circuit court upheld

the VEC finding that no mitigating circumstances have been

proven.   We find no error in these decisions.   Accordingly, the

decision of the circuit court is summarily affirmed.

                                                          Affirmed.




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