                                         COURT OF APPEALS OF VIRGINIA

            Present: Chief Judge Felton, Judges Kelsey and Petty
PUBLISHED

            Argued at Richmond, Virginia

            VIRGINIA DEPARTMENT OF ALCOHOLIC
             BEVERAGE CONTROL
                                                                                   OPINION BY
            v.   Record No. 1352-13-2                                        JUDGE D. ARTHUR KELSEY
                                                                                   MAY 27, 2014
            DON C. TYSON

                            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                        Clarence N. Jenkins, Jr., Judge

                              Ronald R. Regnery, Senior Assistant Attorney General
                              (Kenneth T. Cuccinelli, II, Attorney General; Wesley G.
                              Russell, Jr., Deputy Attorney General; Guy W. Horsley, Jr.,
                              Special Assistant Attorney General, on briefs), for appellant.

                              Darry A. Parker for appellee.

                   The Virginia Department of Alcoholic Beverage Control (the “agency”) fired Don C.

            Tyson in 2012. Tyson exhausted his grievance remedies afforded by the State Grievance

            Procedure, Code § 2.2-3000 et seq. On appeal, the circuit court reversed the administrative

            hearing officer’s decision, which upheld the agency’s decision to terminate Tyson, on the ground

            that the agency violated Tyson’s procedural due process rights. Finding no legal basis for that

            conclusion, we reverse the circuit court’s holding and reinstate the hearing officer’s decision.

                                                              I.

                   Ordinarily, an appellate court recites the facts in the light most favorable to the prevailing

            party in the circuit court. “In cases involving administrative review of state employee

            grievances, however, the light-most-favorable rendition of the facts is inapt.” Va. Dep’t of

            Transp. v. Stevens, 53 Va. App. 654, 658, 674 S.E.2d 563, 565 (2009). The facts of this case

            came before the circuit court, as they do to us, “on the record” developed in the agency

            proceedings. See Code § 2.2-3006(B). “In reviewing agency factfinding, a circuit court acts
much like an appellate court — reviewing the facts developed in the agency record in the light

most favorable to the party prevailing in that forum and deferring to agency factfinding unless

patently insubstantial.” Stevens, 53 Va. App. at 658, 674 S.E.2d at 565 (citing Va. Dep’t of

Corr. v. Compton, 47 Va. App. 202, 217-18, 623 S.E.2d 397, 404 (2005)). On further appeal to

us, we apply the same standard.

       In 2012, Tyson worked as a project manager for the agency. He was fired after receiving

multiple disciplinary notices for various things, such as “abuse of state time,” the “failure to

follow supervisory instructions,” and “poor job performance.” App. at 4, 6, 73. The specific

process that led to his dismissal began with a meeting with his supervisor who counseled Tyson

about a poorly written and inaccurate letter that he sent to an agency consultant. The supervisor

instructed Tyson to take certain remedial measures, but he failed to comply fully with her

instructions.

       Subsequently, on April 4, 2012, the agency issued to Tyson a “Memorandum of Pending

Disciplinary Action.” Id. at 2. The memo advised Tyson that his supervisor had recommended

disciplinary action against him and explained in detail her basis for doing so. The memo ended

with the statement: “In an effort to provide you with due process, you are given 48 hours to

respond in writing to the charge listed above. This is your opportunity to provide any comments

you wish to add concerning these incidents before the disciplinary action is issued.” Id. at 3.

Tyson signed the memo, acknowledging that he personally received it on April 4, 2012.

       Two days came and went without any oral or written response to the memo by Tyson.

Approximately two weeks later, on April 20, 2012, the agency issued two written disciplinary

notices to Tyson. The second of the two notices terminated Tyson’s employment effective April

23, 2012. The notices informed Tyson of his rights under the agency’s grievance procedure.

Tyson responded to the notices with a “Grievance Form A – Expedited Process” and a detailed


                                                -2-
written statement attached explaining his position and giving his version of the facts. Id. at 8,

14-15. The agency reviewed the grievance and denied it. Id. at 9.

       Represented by counsel, Tyson then requested and received a formal hearing before an

administrative hearing officer. The hearing officer received multiple exhibits and heard from six

witnesses. Tyson testified on his own behalf and offered his rebuttal to the agency’s complaints

about his work performance.

       At the evidentiary hearing, Tyson produced a physician’s note dated April 6, 2012,

entitled “Certificate to Return to School or Work.” Id. at 70. The note stated Tyson “has been

under my care from 4-6-12 to 4-16-12” and will be “out of work 4-9 to 4-16.” Id. No

explanation of any kind accompanied these statements. Tyson also provided another note, dated

April 12, 2012, stating that Tyson was “totally incapacitated” from April 16 to May 21, 2012, but

was able to return to full “regular” duty with no restrictions on May 21 (the last day of his total

incapacity). Id. at 71. In emails to his supervisor on April 5 and 6, Tyson said he would be “out

sick” due to “pain from [his] head into [his] back,” allegedly from “muscle spasms.” Id. at 72.

These conditions, counsel argued, precluded Tyson from offering his side of the story after

receiving the April 4 memo outlining his supervisor’s concerns about his work. No physician,

however, testified in support of this assertion at Tyson’s evidentiary hearing.

       The administrative hearing officer affirmed the agency’s decision to terminate Tyson for

cause. Tyson appealed to the circuit court pursuant to the State Grievance Procedure, Code

§ 2.2-3006(B). The circuit court reversed the hearing officer’s decision, awarded back pay to

Tyson, and ordered the agency to pay Tyson’s attorney fees. The court grounded its decision on

the finding that Tyson “was not afforded a constitutionally acceptable opportunity to respond to

the pre-termination notice of disciplinary action which was issued to him on April 4, 2012.”

App. at 102.


                                                -3-
                                                 II.

       On appeal, the agency argues that the circuit court erred as a matter of law in reversing

the hearing officer’s decision. We agree.

       In this case, as in most, the procedural context fixes the boundaries of a circuit court’s

adjudicatory power. A state employee may seek judicial review of an agency’s personnel

decision only if it is “contradictory to law.” Stevens, 53 Va. App. at 661, 674 S.E.2d at 567

(quoting Code § 2.2-3006(B)); Compton, 47 Va. App. at 218-19, 623 S.E.2d at 405. “In this

context, the ‘law’ represents ‘the aggregate of legislation, judicial precedents and accepted legal

principles.’” Stevens, 53 Va. App. at 661, 674 S.E.2d at 567 (quoting Tatum v. Va. Dep’t of

Agric. & Consumer Servs., 41 Va. App. 110, 124, 582 S.E.2d 452, 459 (2003)). “The party

challenging the hearing officer’s decision must specify how that decision is contradictory to the

law and what law is thereby being contradicted.” Id. (internal quotation marks omitted). We are

“likewise limited to such review in considering whether the trial court erred in its

determination.” Id. (internal quotation marks omitted).

       The circuit court held that the agency violated Tyson’s procedural due process rights.

The court did not hold that the State Grievance Procedure, Code § 2.2-3000 et seq. — which the

agency scrupulously followed — was in any way unconstitutional. Nor did the court hold that

the agency violated any provision of the grievance statute or its supporting regulations. Rather,

the court held only that Tyson “was not afforded a constitutionally acceptable opportunity to

respond to the pre-termination notice of disciplinary action which was issued to him on April 4,

2012.” App. at 102.

       The circuit court’s decision is not at all self-explanatory. Under settled principles, a state

employee with a property interest in his employment is entitled to pre-termination “oral or

written notice of the charges, an explanation of the employer’s evidence, and an opportunity for


                                               -4-
the employee to tell his side of the story.” Gilbert v. Homar, 520 U.S. 924, 929 (1997) (citing

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985)); see also Garraghty v. Jordan,

830 F.2d 1295, 1299-1300 (4th Cir. 1987). The “elaborate statutory grievance procedures”

required by the State Grievance Procedure “more than satisfy the minimal requirements of due

process.” Stevens, 53 Va. App. at 664, 674 S.E.2d at 568.

       Here, the agency followed the employee grievance statutes at all stages of the process. It

ultimately ended with an evidentiary hearing in which Tyson was represented by counsel and

allowed to present evidence, to call and examine witnesses, and to contest all aspects of the

agency’s decision. It is hard to imagine how this process violated Tyson’s due process rights.

See generally Moore v. Williamsburg Reg’l Hosp., 560 F.3d 166, 180 (4th Cir. 2009) (“Plaintiff

was notified of the allegations against him, given ample opportunity to present evidence, allowed

to call and cross-examine witnesses, and was represented by counsel throughout. There was no

procedural due process violation.”).1

       Though the circuit court never said as much, Tyson claims the circuit court concluded

that he suffered from a medical condition that precluded him from participating in the due

process being offered to him prior to the April 4 “Memorandum of Pending Disciplinary

Action.” We have several responses to this hypothesis.




       1
         See also Dennison v. Cnty. of Frederick, 921 F.2d 50, 55 (4th Cir. 1990) (holding that
appellant “received all of the procedural due process to which he was entitled” because he
received an extensive post-termination hearing in which he “was represented by counsel and
could call witnesses as well as cross-examine adverse witnesses”); McClelland v. Massinga, 786
F.2d 1205, 1213 (4th Cir. 1986) (recognizing that the requirements of procedural due process are
met when appellant is “entitled to a [post-deprivation] full administrative hearing, with the
panoply of rights attaching to such a hearing”); Stevens, 53 Va. App. at 664, 674 S.E.2d at 568
(holding that the minimal requirements of procedural due process are amply met by the
“elaborate statutory grievance procedures”).


                                               -5-
       To begin with, the circuit court had no authority to review de novo the facts recited in the

agency record or to substitute its own judgment for that of the hearing officer. The court’s only

role was to determine whether the agency violated the law. No “law” — constitutional,

statutory, or regulatory — requires an agency to suspend employment decisions because the

affected employee had (as Tyson claimed) “pain from [his] head into [his] back” associated with

“muscle spasms.” App. at 72. Nothing about these alleged symptoms precluded Tyson from

contacting the agency to explain why he thought the agency should not fire him.

       Thus, the circuit court’s holding (whether characterized as a question of fact or as a

mixed question of fact and law) is plainly wrong. Tyson was “afforded a constitutionally

acceptable opportunity to respond to the pre-termination notice of disciplinary action which was

issued to him on April 4, 2012.” Id. at 102. He met with his supervisor prior to receiving the

April 4 memo and was given a full and fair opportunity to respond to the supervisor’s complaints

about his job performance. In Tyson’s own recitation of the facts, which was attached to his

grievance form, he admitted to giving his supervisor oral explanations for his job performance

prior to April 4 when each of the issues arose. See id. at 14, 15. He personally received the

memo on April 4 and was given two days to repeat his side of the story. He made no response.2

       In an abundance of caution, the agency waited not two days — but sixteen days — before

taking any further action. At no time during that extended period did Tyson accept the agency’s

invitation to offer whatever response he had to his supervisor’s criticism of his work. Nor did he

ever contact the agency seeking additional time to respond.

       Tyson’s reliance on the two cryptic medical forms (which presumably persuaded the

circuit court) adds nothing of substance to the debate. One of the notes, dated April 6, 2012,


       2
         See Hanton v. Gilbert, 36 F.3d 4, 7 (4th Cir. 1994) (rejecting a claim of denial of due
process prior to termination when the employee was given “an opportunity to present her view of
the matter” and chose “to remain silent in the face of such an opportunity”).

                                               -6-
stated he would be out of work beginning April 9, 2012 — five days after the April 4 memo and

thus well after the two-day response period. Id. at 70. The other note, without any supporting

medical diagnosis or explanation, claimed Tyson was “totally incapacitated” from April 16 to

May 21, 2012, but was able to return to full “regular” duty with no restrictions on May 21. Id. at

71. Even if the hearing officer had accepted this note at face value, Tyson’s alleged incapacity

between April 16 and May 21 says nothing about his earlier ability to respond within two days of

the April 4 memo.3

       Finally, the circuit court’s holding failed to identify the structural flaw in Tyson’s

argument: Tyson did not challenge his termination, but only the process that led to it. “Process

is not an end in itself.” Olim v. Wakinekona, 461 U.S. 238, 250 (1983). The point of due

process is to ensure that the government does not deprive anyone of “life, liberty, or property”

arbitrarily and capriciously — that is, “without due process of law.” U.S. Const. amend. XIV,

§ 1. Pre-deprivation process provides “an initial check against mistaken decisions — essentially,

a determination of whether there are reasonable grounds to believe that the charges against the

employee are true and support the proposed action.” Loudermill, 470 U.S. at 545-46 (emphasis

added).4 The right of an aggrieved person to challenge the process leading to his deprivation,

therefore, presupposes he also challenges the deprivation itself. See 3 Ronald D. Rotunda &

John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 17.9(c)(i), at 269



       3
         In fact, Tyson was able to send two emails to his supervisor informing her that he would
be “out sick” on April 5 and 6, which was within that two-day response period. App. at 72.
       4
         See also Homar, 520 U.S. at 933 (acknowledging that “the purpose of a pre-termination
hearing is to determine ‘whether there are reasonable grounds’” for the termination (quoting
Loudermill, 470 U.S. at 545-46)); Powell v. Mikulecky, 891 F.2d 1454, 1458 (10th Cir. 1989)
(“The pretermination hearing is merely the employee’s chance to clarify the most basic
misunderstandings or to convince the employer that termination is unwarranted.”); Crocker v.
Fluvanna Cnty. Bd. of Pub. Welfare, 859 F.2d 14, 17 (4th Cir. 1988) (“[A] principal purpose of a
pre-termination hearing is so that the employer may avoid a mistake.”).

                                                -7-
(5th ed. 2012) (“A pre-termination opportunity to respond to charges would help to avoid

erroneous or unjustified termination decisions.”).

       On appeal, Tyson concedes the adequacy of his post-deprivation remedies and accepts

that they support the agency’s decision to fire him. See Oral Argument Audio at 24:20 to 24:43;

see also Appellee’s Br. at 2 (acknowledging that Tyson did not ask for his employment to be

reinstated). It necessarily follows that the adequacy of the hearing officer’s evidentiary hearing

and his decision on the merits of the termination decision cures any alleged deficiency in

Tyson’s pre-deprivation process, particularly Tyson’s claim that he did not have an opportunity

to respond to a memo he received many weeks prior to the hearing.5 We fail to see what

difference his initial informal explanation could have made if his formal explanation, delivered

in the context of a full evidentiary hearing, was concededly insufficient to save his job.

       In rebuttal, Tyson suggests his post-deprivation remedy, while adequate, should be

disregarded as legally irrelevant. See Oral Argument Audio at 22:54 to 23:21. Settled

precedent, however, has rejected the assertion that “once we find a due process violation in the

denial of a pretermination hearing we need not and should not consider whether the post-

termination procedures were adequate” because, among other reasons, “the existence of post-

termination procedures is relevant to the necessary scope of pretermination procedures.”

Loudermill, 470 U.S. at 547 n.12. “Pre-termination and post-termination proceedings are not


       5
          Adequate and thorough post-deprivation remedies can cure inadequate or superficial
pre-deprivation procedures. See, e.g., Smutka v. City of Hutchinson, 451 F.3d 522, 527 (8th Cir.
2006) (citing Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897, 903 (8th Cir. 2000)); McKinney
v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994); Glenn v. Newman, 614 F.2d 467, 473 (5th Cir.
1980); see also Scott v. Cnty. of Richardson, 789 N.W.2d 44, 51-52 (Neb. 2010) (collecting
federal and state court cases discussing this point). Several courts have added the caveat that
robust post-deprivation remedies cannot cure the complete absence of any pre-deprivation
process. See, e.g., Cotnoir v. Univ. of Me. Sys., 35 F.3d 6, 12-13 (1st Cir. 1994); Schultz v.
Baumgart, 738 F.2d 231, 237 (7th Cir. 1984). We need not address this caveat, however, given
that Tyson was afforded pre-deprivation process.


                                                -8-
evaluated for constitutional adequacy in isolation from each other; a reviewing court studies the

totality of the process received in light of the factual record to determine if the procedural due

process was sufficient.” Senra v. Town of Smithfield, 715 F.3d 34, 39 (1st Cir. 2013) (citing

Loudermill, 470 U.S. at 547 n.12). “Therefore, a pretermination opportunity to respond, coupled

with post-termination administrative procedures provides ‘all the process that is due.’” Holland

v. Rimmer, 25 F.3d 1251, 1258 (4th Cir. 1994) (quoting Loudermill, 470 U.S. at 547-48).

                                                 III.

       In sum, the circuit court erred in reversing the hearing officer’s decision, which upheld

the agency’s termination of Tyson’s employment, on the ground that Tyson’s procedural due

process rights were violated. We reverse the circuit court’s order and reinstate the hearing

officer’s decision.

                                                                                           Reversed.




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