Mandel v. Allen

Decision Date16 June 1995
Docket NumberCiv. A. No. 3:94cv758.
Citation889 F. Supp. 857
PartiesMarilyn MANDEL, Barbara P. Bennett, Arthur R. Spencer, and Robert F. Crawford, Plaintiffs, v. George ALLEN, in his official capacity as Governor of the Commonwealth of Virginia, Jay Timmons, Michael Thomas, Robert T. Skunda, Kay Cole James, Sr., Theoron J. Bell, and Ronald G. Gordon, in their individual and official capacities, and William E. Landsidle, in his official capacity as the Comptroller of Virginia, Defendants.
CourtU.S. District Court — Eastern District of Virginia

Carolyn P. Carpenter, Carol D. Woodward, Eileen N. Wagner, Carpenter, Woodward & Wagner, Richmond, VA, for plaintiffs.

Neil A. McPhie, Peter R. Messitt, Office of Atty. Gen., Richmond, VA, for defendants.


PAYNE, District Judge.

Marilyn Mandel, Barbara P. Bennett and Arthur R. Spencer, three former employees of the Commonwealth of Virginia, and Robert F. Crawford, a current employee, instituted this action in state court. It was removed to this court by the defendants, who are Virginia's Governor, several cabinet secretaries and several other state executives.

The plaintiffs seek damages and declaratory and injunctive relief under 42 U.S.C. § 1983 for alleged violations of the Fifth and Fourteenth Amendments to the United States Constitution arising from state actions by which the jobs held by Mandel, Bennett and Spencer were abolished and Crawford's job was reclassified. All four plaintiffs also assert deprivations of rights under Article I, § 9 (ex post facto laws) and Article I, § 11 (due process) of the Virginia Constitution caused allegedly by the improper application to them of the Virginia Personnel Act and certain regulations promulgated under the statute.

The action is now before the court on Plaintiffs' Motion for Partial Summary Judgment on all issues of liability and Defendants' Motion for Summary Judgment to dispose of the action in its entirety. For the reasons set forth below, the defendants' motion is granted and the action is dismissed.


The administrative and personnel actions which spawned this litigation took place in May and June 1994. They were prompted by the efforts of Virginia's executive branch to increase the efficiency and to reduce the cost of state government. The plaintiffs' challenge to those administrative and personnel actions is based on an amalgam of several constitutional principles, each of which, to some extent, relates to the property rights of government employees in their employment. None of those principles, however, provides the basis for the claims asserted, or the relief sought, in this action.

Although each plaintiff's claim is somewhat unique to his or her particular employment, there are common background facts which are central to the common legal themes on which the plaintiffs rely. For instance, all four claims arise in the context of the Virginia Personnel Act ("VPA"), Va.Code §§ 2.1-110 to 2.1-116, and the Policies and Procedures Manual (the "Personnel Manual"), promulgated by Virginia's Department of Personnel and Treasury ("DPT") pursuant to Va.Code § 2.1-114.5(3). To properly analyze the plaintiffs' claims, it is, therefore, necessary to understand the common nucleus of facts from which the claims proceed and the applicable provisions of the VPA and the Personnel Manual on which the claims rely.

A. Virginia's Personnel System

The VPA is the statutory foundation for Virginia's public employment program. Building upon this legislation, the DPT, which is established by Va.Code § 2.1-114.3, has promulgated rules in the Personnel Manual pursuant to Va.Code § 2.1-114.5(13). Taken together, then, the VPA and the Personnel Manual establish Virginia's personnel system, and they form the basis for the legitimate expectations of government employees in their employment by the state.

The stated purpose of the VPA is "to ensure for the Commonwealth a system of personnel administration based on merit principles and objective methods of appointment, promotion, transfer, layoff, removal, discipline, and other incidents of state employment." Va.Code § 2.1-110. As a mechanism for the consistent application of its basic objectives, the VPA requires the Department of Employee Relations Counselors ("DERC") to "establish a grievance procedure" as an "immediate and fair method for the resolution of disputes which may arise between an agency and its employees." Va. Code § 2.1-114.5:1. The same section of the VPA sets out certain minimal requirements for this procedure.

However, under the VPA, certain employees are exempt from the classified employment scheme. In particular:

The provisions of the VPA shall not apply to:

* * * * * *
16. The following officers and employees of executive branch agencies: those who report directly to the agency head.
* * * * * *
Each Governor's Secretary shall have final authority in determining on an ongoing basis the officers and employees exempted by this subdivision and pursuant to its provisions. Such officers or employees shall thereafter serve at the pleasure and will of their appointing authority. The Department of Personnel and Training shall advise and assist each Governor's Secretary in making these determinations and shall be responsible for maintaining an ongoing and up-to-date list of the affected positions....

Va.Code 2.1-116(A) (emphasis added). A state employee who is covered by the VPA is referred to as a "classified" employee. An employee who is not covered by the VPA is referred to as an "exempt" employee.

The version of Va.Code § 2.1-116(A) cited above is the result of legislation, commonly referred to as House Bill 776, which was passed in early 1994 to be effective on July 1, 1994. Those employees exempted from coverage under the VPA by this legislation, then, are sometimes referred to as "776 employees."

Before July 1, 1994, the category of state employees exempt from the VPA's protections was larger than before the enactment of H.B. 776 in that the exempt category included: (1) employees who reported directly to an agency head; and (2) those who served at the level immediately below that level and whose salary grade was 16 or higher. Va.Code § 2.1-116(A) (Michie 1987, main volume). Because the pre-1994 version of the statute was enacted by legislation known as Senate Bill 643, employees exempted by its terms are sometimes referred to as "643 employees."

At its core, this action involves access to the grievance and layoff rights established by the VPA and the Personnel Manual. Classified employees are entitled to file grievances with respect to certain personnel actions taken as to them. Indeed, the VPA explicitly identifies the types of complaints that are included in, and excluded from, the grievance procedure. In that regard, "grievance" is defined as a

complaint or dispute by an employee relating to his or her employment, including, but not necessarily limited to:
(i) disciplinary actions, including dismissals, demotions and suspensions, provided that dismissals shall be grievable whenever resulting from formal discipline or unsatisfactory job performance;
(ii) the application or interpretation of personnel policies, procedures, rules and regulations ...;
(iii) acts of reprisal as the result of utilization of the grievance procedure or of participation in the grievance of another state employee; and
(iv) complaints of discrimination....

Va.Code § 2.1-114.5:1 A. The statute is equally explicit in making clear that certain matters are beyond the reach of the grievance procedure. In that regard, the VPA provides:

Management reserves the exclusive right to manage the affairs and operations of state government. Accordingly, the following complaints are nongrievable: (i) establishment and revision of ... position classifications, ... and (vi) ... termination, layoff, demotion or suspension from duties because of lack of work, reduction in work force, or job abolition.

Va.Code § 2.1-114.5:1B.

Virginia's personnel system also includes procedures for implementing layoffs. Those procedures are borne of the Governor's statutory power to "promulgate such rules ... as he may consider necessary ... to govern ... the order and manner in which layoffs shall be made." Va.Code § 2.1-114.2C. Pursuant to that power, the Personnel Manual, Policy 1.30, details the Commonwealth's layoff policy, the stated objective of which is "to permit agencies to implement a reduction in force, using objective, uniform criteria."

Two layoff provisions occupy a significant role in this action. The first is Policy 1.30(III)(A), entitled "Discontinuing Positions," which provides that "after an agency head has identified the organizational units and occupational classes from which positions will be discontinued, the agency must discontinue positions in" a particular "sequence." Second, Policy 1.30(III)(C), entitled "Reassigning Affected Employees," specifies that: "After an agency has identified all affected employees, it must attempt to reassign them within the agency following specified placement steps."

Because the VPA allows a classified employee to grieve "the application of personnel policies, procedures, rules and regulations," Va.Code § 2.1-114.5:1(A)(ii), a misapplication of the layoff procedures to a classified employee is grievable. The layoff provisions, therefore, provide some measure of protection for classified employees even when the loss of a job occurs pursuant to an action which itself is not grievable.

With this basic statutory and regulatory personnel system in mind, the court now turns to the personnel decisions of which the plaintiffs complain.

B. The Administrative Decisions and the Ensuing Personnel Actions

The election campaign that produced Virginia's current Republican chief executive was rife with assertions of the need to reduce the size and cost of state government and to make it operate more efficiently. (See Defendants' Reply...

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6 cases
  • Pignato v. Com. of Va., Deq
    • United States
    • U.S. District Court — Eastern District of Virginia
    • February 23, 1996
    ...A property interest arises when state law creates a "legitimate claim of entitlement" to certain benefits of employment. Mandel v. Allen, 889 F.Supp. 857 (E.D.Va.1995). Applying that principle, Loudermill and its progeny have held that it is "[t]he tenured public employee is entitled to ora......
  • Virginia Dept. of Corrections v. Compton
    • United States
    • Virginia Supreme Court
    • December 20, 2005
    ...[of the Commonwealth of Virginia] has a property interest in continued employment that is created by the state."); Mandel v. Allen, 889 F.Supp. 857, 859 (E.D.Va.1995) ("Taken together, then, the VPA and the Personnel Manual establish Virginia's personnel system, and they form the basis for ......
  • Schulz v. Green County
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 20, 2011
    ...a government from constitutional due process requirements; it simply eliminates the employee's property interest. See Mandel v. Allen, 889 F.Supp. 857, 866 (E.D.Va.1995) (citing Misek, 783 F.2d at 100–01). The reorganization rule reflects the difference between legislative and adjudicative ......
  • City Council of Laramie v. Kreiling
    • United States
    • Wyoming Supreme Court
    • February 20, 1996
    ...interest (that is, the number and sort of benefits) depend upon the state law creating the claim of entitlement, Mandel v. Allen, 889 F.Supp. 857, 865 (E.D.Va.1995), but the federal constitution protects against the arbitrary deprivation of benefits that fall within the scope of the propert......
  • Request a trial to view additional results
1 books & journal articles
  • Rediscovering Process Values in Employee Grievance Procedures
    • United States
    • Administration & Society No. 34-5, November 2002
    • November 1, 2002
    ...Administra-tion Review,57,27-35.Lincoln, Y.S., & Guba, E. G. (1985). Naturalistic inquiry. Beverly Hills, CA: Sage.Mandel v. Allen, 889 F.Supp. 857 (E.D. Va. 1995).Haraway / EMPLOYEE GRIEVANCE PROCEDURES McClelland, V.(1987). Communication, mixed signals breed mistrust. Personnel Journal,66......

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