COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

KAREN L. VANWINKLE 

 MEMORANDUM OPINION*

v. Record No. 1237-97-2 PER CURIAM 

 NOVEMBER 10, 1997 

VIRGINIA EMPLOYMENT COMMISSION 

AND 

AMMAR'S, INC. 

FROM THE CIRCUIT COURT OF WISE COUNTY 

 (William B. Harper II; Client Centered Legal 

Services of Southwest Virginia, Inc., on 

briefs), for appellant. 

 (Richard Cullen, Attorney General; John Paul 

Woodley, Jr., Deputy Attorney General; 

Richard L. Walton, Jr., Senior Assistant 

Attorney General; James W. Osborne, Assistant 

Attorney General, on brief), for appellee 

Virginia Employment Commission. 

 (Agnis Chakravorty; The Center for Employment 

Law, P.C., on brief), for appellee Ammar's, 

Inc. 

 Karen L. Vanwinkle contends that the trial court erred in 

affirming a decision of the Virginia Employment Commission 

(commission) which disqualified her from receiving unemployment 

benefits, on the ground that she was discharged from her 

employment for misconduct connected with work under Code 

§ 60.2-618(2). 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. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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 "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) (quoting Code § 60.2-625(A)). 

"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 Servs., Inc. v. Virginia 

Employment Comm'n, 24 Va. App. 377, 383, 482 S.E.2d 841, 844 

(1997) (quoting Virginia Employment Comm'n v. Peninsula Emergency 

Physicians, Inc., 4 Va. App. 621, 626, 359 S.E.2d 552, 554, 

1987)). 

 So viewed, the evidence proved that Vanwinkle worked as a 

cashier for Ammar's, Inc., t/a Magic Mart Stores, from April 15, 

1993, through July 7, 1995. On July 6, 1995, Vanwinkle was 

ringing up items being purchased by Gena Taylor when a dispute 

arose concerning some cigarette lighters. Taylor felt that 

Vanwinkle was being rude to her and twice cursed Vanwinkle. 

Assistant Manager Kyle Fletcher was assisting other customers 

when he overheard Vanwinkle tell Taylor, "I'll let you speak with 

the manager if you'd like." Vanwinkle then activated a "Code 

Orange," signifying verbal abuse by a customer. 

 When Fletcher approached, Vanwinkle advised him that Taylor 

had cursed her. When Fletcher attempted to obtain Taylor's 
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version of what happened, Vanwinkle continuously interrupted, 

telling Fletcher, "it's your job to just have her go ahead and 

leave the store," and "[t]ell her to get out." Vanwinkle told 

Taylor that she would be finishing her shift soon and asked if 

Taylor "wanted to discuss this outside." Vanwinkle also grabbed 

the purchase money from Taylor's hand stating, "give me that 

money." Fletcher several times asked Vanwinkle "will you please 

let me get the facts of what's going on." During this period of 

time, there were other customers and employees nearby. 

 After Taylor departed the store, Vanwinkle continued to tell 

Fletcher how he should have handled the situation. Shortly 

thereafter, an employee advised Fletcher that Taylor wished to 

speak with him. While Fletcher was talking to Taylor outside of 

the store, Vanwinkle exited the store. Vanwinkle and Taylor 

began to exchange words, and Fletcher told Vanwinkle to go home. 

 The customer blew smoke from her cigarette in the direction of 

Vanwinkle's face and, when she threw her cigarette to the ground, 

Vanwinkle stated, "that's littering." 

 The commission further found that 

 [t]he assistant manager then told [Vanwinkle] 

to go home and as she was walking to her car, 

the customer called her a "piece of white 

trash" and a "slut." [Vanwinkle] asked the 

assistant manager if they could discuss the 

matter in the office and he said they would 

discuss it tomorrow. As [Vanwinkle] was 

walking to her car, she pointed to her 

buttocks and said to the customer, twice, 

"kiss this." . . . . 

 After [Vanwinkle] got in her car, she 

drove to where the assistant manager and the 
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customer were standing and again stated that 

if they were going to continue to discuss the 

matter she needed to be in on it, and she 

requested a meeting. The assistant manager 

again told her they would discuss it 

tomorrow. 

 The following day, after consulting with her home office, 

store manager Theresa Jones discharged Vanwinkle. On May 27, 

1995, just six weeks earlier, Jones and Fletcher had warned 

Vanwinkle, following an incident involving a price check, that 

she needed to act more professionally with customers and 

co-workers. 

 Code § 60.2-618(2) provides that a claimant will be 

disqualified from receiving unemployment benefits if she 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. 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). 
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 Vanwinkle's insubordination and exacerbation of the conflict 

with Taylor demonstrated a deliberate disregard for the interests 

of her employer. In the presence of Taylor and other customers, 

she interfered with Fletcher's attempts to resolve the situation 

by continually interrupting him and telling him how he should be 

handling the matter. She implicitly threatened the customer by 

asking if Taylor wanted to "discuss this outside." 

 Once the customer had left the store, instead of proceeding 

directly to her car and going home, Vanwinkle again interjected 

herself into the conversation Fletcher was having with Taylor. 

She made a rude gesture to the customer and, after Fletcher again 

told her to go home, again tried to intervene in the 

conversation. Accordingly, the evidence contained in the record 

supports the commission's finding that Vanwinkle'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). 

 While Vanwinkle was subjected to abusive language by Taylor, 

this did not grant her license to interfere with Fletcher's 

attempts to resolve the matter. Her behavior also tended to 
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inflame the conflict with Taylor. Further, once the customer was 

outside of the store, Vanwinkle intentionally placed herself in a 

position where she could be provoked. The record supports the 

commission's finding that Vanwinkle presented insufficient 

evidence of mitigating circumstances. Accordingly, the 

commission did not err in disqualifying her from receiving 

unemployment benefits. 

 Affirmed.