                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Petty and Senior Judge Haley
UNPUBLISHED


              Argued at Alexandria, Virginia


              DONNA COFFEY
                                                                            MEMORANDUM OPINION BY
              v.     Record No. 0529-13-4                                    JUDGE WILLIAM G. PETTY
                                                                                OCTOBER 29, 2013
              VIRGINIA DEPARTMENT OF JUVENILE JUSTICE


                                   FROM THE CIRCUIT COURT OF CULPEPER COUNTY
                                               Susan L. Whitlock, Judge

                               D. Brock Green (Jones & Green, LLP, on briefs), for appellant.

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


                     Donna Coffey appeals the decision of the Circuit Court of Culpeper County that the

              hearing officer’s decision to mitigate Coffey’s punishment from termination to suspension was

              “contradictory to law” within the meaning of Code § 2.2-3006(B). In her third assignment of

              error, Coffey argues that the circuit court erred when it determined that the hearing officer’s

              decision was “contradictory to law” and misapplied the appropriate standard of review in

              reaching that decision.1 For the reasons expressed below, we agree. Accordingly, we reverse the

              circuit court’s decision and reinstate the hearing officer’s decision.




                     
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       In light of our decision on this assignment of error, we need not address Coffey’s first,
              second, and fourth assignments of error.
                                                 I.

       Because the parties are fully conversant with the record in this case and this

memorandum opinion carries no precedential value, we recite below only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal. Furthermore, although an appellate court ordinarily recites the facts in the light most

favorable to the prevailing party in the circuit court, “[i]n cases involving administrative review

of state employee grievances, . . . the light-most-favorable rendition of the facts is inapt. The

facts of this case came before the circuit court, as they do to us, ‘on the record’ developed in the

agency proceedings.” Va. Dep’t of Transp. v. Stevens, 53 Va. App. 654, 658, 674 S.E.2d 563,

565 (2009).

       Coffey was employed by the Department of Juvenile Justice (“Agency”) as a trainer and

instructor at one of its facilities. On June 7, 2012, while supervising students clean a hallway,

Coffey, “out of reflex” when she heard a student cursing, hit the student’s mouth with the back

of her hand. Striking residents of the facility is a violation of both Department of Human

Resource Management (“DHRM”) and Department of Correctional Education policy. The

principal of the facility later learned of Coffey’s actions and reported the matter to the managers

at the Agency’s Central Office for further consideration. The managers decided that Coffey

should be terminated and ordered the principal to issue the written notice. On June 27, 2012, the

principal issued a written notice of a Group III offense to Coffey and terminated her employment

with the Agency.

       Pursuant to the procedures set forth by the DHRM in its Grievance Procedure Manual,

Coffey timely filed a grievance to challenge the Agency’s action. On September 26, 2012, the

hearing officer issued a decision reducing the Group III written notice with termination to a

Group II written notice with a ten-work-day suspension. As a result, Coffey was reinstated to

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her same position or its equivalent with back pay. The hearing officer found that the principal,

and therefore, the Agency, inconsistently disciplined employees for similar conduct. The

principal was aware of another Agency employee who hit students but chose not to report the

employee’s conduct to the Central Office. This finding of inconsistent application of employee

discipline justified the hearing officer in reducing Coffey’s discipline. See Rules for Conducting

Grievance Hearings § VI(B)(2).

       The Agency sought administrative review of that decision by the Office of Employment

Dispute Resolution (“EDR”) at the DHRM. The EDR determined that the hearing officer’s

decision was consistent with policy and, therefore, there was no basis upon which to interfere

with its decision to mitigate Coffey’s discipline. The Agency then appealed the matter to the

circuit court. The circuit court reversed the hearing officer’s decision, finding that it was

“contradictory to law” within the meaning of Code § 2.2-3006, and reinstated the discipline

administered by the Agency.2 Coffey appealed to this Court.

                                                 II.

       On appeal, Coffey argues that the circuit court erred when it determined that the hearing

officer’s decision was “contradictory to law” and misapplied the appropriate standard of review

in reaching that decision.

       “The General Assembly has clearly vested review of policy issues involved in employee

grievances in the Department of Human Resource Management, and not in the courts.” Va.

Dep’t of State Police v. Barton, 39 Va. App. 439, 445, 573 S.E.2d 319, 323 (2002). In fact,

review of state employee grievances requires a “tripartite review procedure”—vested only

minimally in the courts. Id. at 445, 573 S.E.2d at 322. Under this review procedure, “the


       2
         The circuit court also addressed the hearing officer’s finding that Coffey and another
employee, whose actions were not reported to the Central Office, were similarly situated. The
court held that it did not have authority to review that finding. That issue is not on appeal here.
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hearing officer is to act as fact finder and the Director of the [DHRM] is to determine whether

the hearing officer’s decision is consistent with policy.” Id. “[N]either of these determinations

is subject to judicial review . . . .” Id. Rather, “[t]he only grounds of appeal of the hearing

officer’s decision [to the circuit court] is ‘that the determination is contradictory to law.’” Id.

(quoting Code § 2.2-3006(B)). To reverse the hearing officer’s decision, the court must

“‘identify [a] constitutional provision, statute, regulation or judicial decision which the [hearing

officer’s] decision contradict[ed].’” Tatum v. Va. Dep’t of Agric. & Consumer Servs., 41

Va. App. 110, 122, 582 S.E.2d 452, 458 (2003) (alterations in original) (quoting Barton, 39

Va. App. at 446, 573 S.E.2d at 323). We are likewise limited to such a review in considering

whether the circuit court erred in its determination. Pound v. Dep’t of Game & Inland Fisheries,

40 Va. App. 59, 64, 577 S.E.2d 533, 535 (2003).

       Moreover, this case is controlled by our decision in Tatum. In Tatum, the employee was

issued a Group III written notice and terminated from his employment. Tatum, 41 Va. App. at

114, 582 S.E.2d at 454. The matter came before a hearing officer who reduced the disciplinary

action to a Group III written notice without removal. Id. at 115-16, 582 S.E.2d at 455. The

hearing officer mitigated the discipline based on consideration of the employee’s favorable work

performance and nine years of employment with the Commonwealth. Id. at 115, 582 S.E.2d at

455. The circuit court reversed the hearing officer’s decision ordering reinstatement, holding

that it was “contrary to law because the hearing officer overrode the Department’s ‘management

decision’ with respect to the appropriate discipline to impose upon a finding of Group III

misconduct, where the Department’s decision was not arbitrary or contrary to law.” Id. On

appeal, this Court reversed the decision of the circuit court, holding that the Department failed to

establish that the hearing officer’s decision contradicted any “law” and that the circuit court erred

by inquiring into whether the hearing officer substituted his judgment for that of the agency. Id.

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at 125, 582 S.E.2d at 459. We noted that although the hearing officer should give appropriate

deference to agency management decisions that are consistent with law and policy, “no statute or

rule provides that the hearing officer may order reinstatement only where the agency’s decision

was arbitrary or contrary to law.” Id. at 123, 582 S.E.2d at 459. In fact, we stated that the

hearing officer must review the evidence de novo to determine whether the agency has proven by

a preponderance of the evidence that the disciplinary action was warranted and appropriate under

the circumstances and whether there were mitigating circumstances to justify reduction or

removal of the disciplinary action. Id. at 122-23, 582 S.E.2d at 458. We reasoned that it is the

purview of the Director of the DHRM to determine whether a hearing officer’s decision is

consistent with policy. Id. at 121, 582 S.E.2d at 458. That decision is “final and not subject to

judicial review as a matter of law.” Id. at 118, 582 S.E.2d at 456.

       In Tatum, the Department appealed to both the Director of the DHRM and the Director of

the EDR—both rejected the Department’s assertion that the hearing officer did not follow state

policies and procedures in making its decision. Thus, the circuit court in Tatum was bound by

the decisions of the Directors of the EDR and the DHRM. We reversed on appeal because the

circuit court failed to demonstrate any “law” contradicted by the hearing officer’s decision. Id.

at 124, 582 S.E.2d at 459.

       Here, the circuit court couched its reversal of the hearing officer’s decision to mitigate

Coffey’s termination to a suspension in terms of it being “contradictory to law.” However, like

the circuit court in Tatum, the circuit court failed to demonstrate that the hearing officer’s

decision was, in fact, contradictory to law. On the contrary, the circuit court acted as the fact

finder in this case and substituted its judgment for that of the hearing officer—it determined that

mitigation based on inconsistent application of discipline was inappropriate in this case.

However, as we noted in Tatum, “The hearing officer is expressly authorized to reduce the

                                                -5-
discipline if the officer finds that the level or severity of discipline for the misconduct was too

severe.” Id. at 123, 582 S.E.2d at 458. Just as in Tatum, “the adjudicative acts of the hearing

officer [in this case] were grounded in and consistent with the provisions of Code §§ 2.2-3003

and 2.2-3005, as well as the Rules for Conducting Grievance Hearings, VI(B).” Id. at 124, 582

S.E.2d at 459.

       Moreover, the Agency’s assertion that the hearing officer did not follow policy and

procedures in considering or weighing mitigating circumstances was rejected by the Director of

the EDR. Thus, the circuit court was bound by that policy decision because it is final and not

subject to judicial review as a matter of law. See Office of Employment Dispute Resolution,

Grievance Procedure Manual, § 7.2(c); see also Code §§ 2.2-1001(5) and 2.2-3003(G). As we

stated, “The General Assembly has clearly vested review of policy issues involved in employee

grievances in the Department of Human Resource Management, and not in the courts.” Barton,

39 Va. App. at 445, 573 S.E.2d at 323.

       Therefore, because it did not limit its analysis of the hearing officer’s decision to whether

it was contradictory to law, the circuit court misapplied the appropriate standard of review and,

ultimately, failed to demonstrate any such contradiction.

                                                 III.

       For the foregoing reasons, we reverse the circuit court’s decision.

                                                                                            Reversed.




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