Videl C. Pizzino v. J. Dillard Hutchens ( 1996 )

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.
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
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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,
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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
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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.
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