Samuel T. Bistawros v. VECand Minnieland Day School ( 2001 )

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
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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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