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. 
 2 

 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 
 3 

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, 
 4 

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 
 5 

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.