                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Frank


WILLIAM S. HENDERSON

v.   Record No. 1056-99-2                        MEMORANDUM OPINION *
                                                     PER CURIAM
VIRGINIA EMPLOYMENT COMMISSION AND               SEPTEMBER 14, 1999
 COUNTY OF HENRICO


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                   Buford M. Parsons, Jr., Judge

           (William S. Henderson, pro se, on briefs).

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

           No brief for appellee County of Henrico.


     William S. Henderson contends the Circuit Court of Henrico

County (circuit court) erred in affirming a decision of the

Virginia Employment Commission (Commission) that disqualified

him from receiving unemployment benefits.      The Commission found

that the Henrico County Department of Public Works (the County)

discharged Henderson for misconduct connected with work under

Code § 60.2-618(2).    Henderson further contends that the circuit

court denied him a fair hearing and that he was wrongfully

terminated in contravention of the Americans with Disabilities


     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Act.   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.

                     Sufficiency of the Evidence

       "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 Henderson was employed

by the County as a street maintenance worker from September 17,

1997 through February 17, 1998.   The County has a policy

requiring employees to notify their supervisor each day they are

absent from work, unless they are otherwise excused from that

requirement.   Henderson did not return to work after February

17, 1998 because of an injury he had sustained in November 1997.

       Henderson went to his doctor on February 23, 1998 and

obtained a note excusing him from work through March 19, 1998.


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He did not, however, notify his supervisor, Ron Wehry, of his

absence until February 25, 1998, at which time Wehry told

Henderson to bring in a doctor's note supporting his continued

absence.   Wehry did not hear from Henderson after that, and

Henderson did not present the County with the doctor's note

until after he was discharged.    Henderson came to his employer's

office on March 6, 1998 to pick up his paycheck and to talk with

Wehry, but Wehry was away from the office.    Henderson was

advised to call back and schedule an appointment with Wehry, but

Henderson failed to do so.

     On March 20, 1998, the County advised Henderson that he was

discharged for his failure to properly notify the County

regarding his absence from work.

     Henderson testified that he called the office every day

during his absence. 1   Wehry testified, however, that he never

heard from Henderson after February 25, 1998.    The County

conceded that Henderson called in on a number of occasions, but

asserted that Henderson did not speak with Wehry as required.

                [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
     1
       In his statement to the claims deputy, preceding his
appeals hearings, Henderson indicated that he did not know
whether he called in between February 25 and March 6 and that he
did not contact his employer after March 6 until he received the
discharge letter.


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             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 . . . 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.

        When viewed in a light most favorable to the Commission and

the County, the record establishes that Henderson failed to

comply with the County's policy to provide proper notice to his

supervisor regarding his absences.       Despite being instructed to

do so, Henderson did not bring in his doctor's note following

his February 25, 1998 conversation with Wehry until after he was

discharged.    And Henderson also failed to schedule an

appointment with Wehry after being directed to do so on March 6,

1998.    The requirements the County sought to impose on Henderson

regarding his extended absence were reasonable.      Henderson's

failure to comply with these requirements demonstrated a

deliberate and willful disregard of his duties and obligations

as a county employee, and constituted 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

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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).    Whether a claimant's evidence

sufficiently mitigates his behavior so as to avoid

disqualification for benefits is a question of fact for the

Commission.     See Britt v. Virginia Employment Comm'n, 14 Va.

App. 982, 986, 420 S.E.2d 522, 525 (1992).

     Henderson testified that he called in every day, but that

Wehry was never present or otherwise available to talk to him.

He claimed that he was told to bring in his doctor's note when

he returned to work and that he did not have a proper, written

diagnosis to give to his employer.

     The Commission was not persuaded by Henderson's evidence of

mitigating circumstances.    The record supports the Commission's

finding that the County discharged Henderson for misconduct

connected with work and that Henderson failed to present

sufficient evidence in mitigation.       Accordingly, the Commission

did not err in disqualifying him from receiving unemployment

benefits.

                        Right to a Fair Hearing

     In his appellate brief, Henderson's first question

presented is:    "Did the dismissal of Henderson's appeal by the

District [sic] Court deny Henderson's constitutionally protected

right to a fair hearing?"    Henderson, however, provided neither


                                 - 5 -
argument nor precedent in support of this question presented.

See Littlejohn v. Commonwealth, 24 Va. App. 401, 409, 482 S.E.2d

853, 857 (1997) (a party waives an issue on appeal if she does

not submit written argument on the issue in her appellate

brief); Rule 5A:20(e).   Moreover, although the circuit court's

final order reflects that Henderson appeared before the court in

person, the record does not contain a transcript or statement of

facts.   See White v. Morano, 249 Va. 27, 30, 452 S.E.2d 856, 858

(1995) (the onus of providing a sufficient record of appeal

falls upon the party seeking to reverse the circuit court's

decision).   Without a proper record, we cannot determine whether

Henderson's rights were respected, or whether he properly

preserved this issue for appeal by objecting to the manner in

which the circuit court conducted his hearing.    Accordingly, we

will not address this question presented.

                  Americans with Disabilities Act

     Appellant contends that he was discharged in violation of

the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.

There is no evidence, however, that he raised this issue with

either the Commission or the circuit court.   And we will not

address the issue for the first time on appeal.     See Whitt v.

Race Fork Coal Corp., 18 Va. App. 71, 74, 441 S.E.2d 357, 359

(1994); Rule 5A:18.




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     For the foregoing reasons, the judgment of the circuit

court is affirmed.

                                                       Affirmed.




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