Morris v. George Mason Univ.

• Decision Date: 12 April 2022
• Docket Number: Record No. 1130-21-4
• Citation: 74 Va.App. 531,871 S.E.2d 231
• Parties: Tate MORRIS v. GEORGE MASON UNIVERSITY
• Court: Virginia Court of Appeals

74 Va.App. 531

871 S.E.2d 231

Tate MORRIS

v.GEORGE MASON UNIVERSITY

Record No. 1130-21-4

Court of Appeals of Virginia, Fairfax.

APRIL 12, 2022

J. Caleb Jones (Simms Showers, LLP, on brief), for appellant.

Eli S. Schlam, Assistant Attorney General, Associate University Counsel, for appellee.

Present: Chief Judge Decker, Judges Ortiz and Causey

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Tate Morris appeals his termination of employment with George Mason University (GMU). He contends that numerous errors were made below that require reversing the decision of the circuit court upholding his termination. He challenges the resolution of both factual and legal issues at the hearing-officer and agency-review levels, as well as various procedures followed by the circuit court in its subsequent review. For the reasons that follow, we affirm the decision.

I. BACKGROUND¹

The appellant worked as a law enforcement officer for GMU for over two years. That employment came to an end when he was terminated due to his failure to follow workplace safety protocols related to the COVID-19 pandemic.

The evidence established that in the summer of 2020, GMU adopted its "Safe Return to Campus Plan." The new safety rules necessitated by the global pandemic required employees to complete an online daily COVID-19 health check. Any employee experiencing symptoms consistent with COVID-19 was required to test for the virus and not return to campus until cleared by a medical professional.

While working a shift on October 3, 2020, the appellant "started feeling bad" and went home early. The next day, he completed the online COVID-19 health check. Based on his reported symptoms, the appellant received a "yellow" automated response instructing him to stay off campus until he had clearance from his healthcare provider, his symptoms had improved, and at least ten days had passed since the onset of the symptoms. The appellant did not go to work that day and informed a supervisor that he felt "super congested" and would take a COVID-19 test.

On October 5, 2020, the appellant reported to work for an overtime shift at one of GMU's COVID-19 testing sites without taking a COVID-19 test or obtaining clearance from his healthcare provider. After he completed his shift, a supervisor found out that he had come to work after reporting symptoms and informed him that he could not be at work. She warned that he could not return until he received a negative test and had been cleared by his physician or, absent a test, after ten days had passed. The following day, the appellant took a COVID-19 test. He remained out of work while awaiting the result, which came back "positive" two days later.

GMU issued a disciplinary action notice terminating the appellant's employment. The appellant filed a grievance challenging the termination. A hearing officer with the Office of Employment Dispute Resolution (EDR), a division of the Department of Human Resources Management (DHRM), held the resulting hearing. The hearing officer found that the evidence supported GMU's decision. Dissatisfied with this outcome, the appellant requested administrative review by EDR. The office's director upheld the hearing officer's decision. The appellant then challenged the decision in the circuit court. The circuit court likewise affirmed the hearing officer's decision. The appeal to this Court followed.

II. ANALYSIS

"[I]n conjunction with the Virginia Personnel Act, the General Assembly established a system for handling state employee complaints arising in the workplace by enacting the State Grievance Procedure." Murphy v. Va. Dep't of State Police , 68 Va. App. 716, 719, 813 S.E.2d 21 (2018) (citation omitted) (quoting Pound v. Dep't of Game & Inland Fisheries , 40 Va. App. 59, 63-64, 577 S.E.2d 533 (2003) ); see Code §§ 2.2-3000 to -3008. This system to address grievances "creates a ‘tripartite review procedure’ " that sets out the following responsibilities: "(1) the hearing officer is the finder of fact and final authority on factfinding; (2) DHRM and EDR determine whether the hearing officer's ruling ... compli[es] with personnel policy and grievance procedure[s] respectively; and (3) the [circuit and appellate] courts determine whether the grievance determination is ‘contradictory to law.’ " Passaro v. Va. Dep't of State Police , 67 Va. App. 357, 367, 796 S.E.2d 439 (2017) (quoting Va. Dep't of State Police v. Barton , 39 Va. App. 439, 445, 573 S.E.2d 319 (2002) ).

Under this framework, in an appeal of a grievance proceeding, a reviewing court, whether it is a circuit or appellate court, may reverse or modify the decision only if it is "contradictory to law." Osburn v. Va. Dep't of Alcoholic Beverage Control , 295 Va. 10, 17, 810 S.E.2d 262 (2018) (quoting Va. Polytechnic Inst. & State Univ. v. Quesenberry , 277 Va. 420, 429, 674 S.E.2d 854 (2009) ). In making this determination, the reviewing court is "limited to ascertaining compliance with constitutional provisions, statutes, regulations, and judicial decisions." Taylor v. Va. Alcoholic Beverage Control Auth. , 70 Va. App. 237, 253, 827 S.E.2d 15 (2019) (quoting Murphy , 68 Va. App. at 720, 813 S.E.2d 21 ). These "[q]uestions ... are reviewed de novo. " Id. (quoting Osburn , 295 Va. at 17, 810 S.E.2d 262 ).

The appellant raises several challenges to the grievance decision. His arguments pertain to certain findings of fact, his due process rights, and the circuit court's handling of the case.

A. Findings of Fact

The appellant's arguments related to findings of fact concern both the hearing officer's decision and the EDR administrative review.

1. The Hearing Officer's Decision

The appellant contends that the hearing officer did not follow the law by "fail[ing] to address the material issues in the case." He suggests that the hearing officer erred by not making a factual finding on every allegation of wrongdoing set out in the written notice. The appellant argues that the failure to resolve all factual questions prejudiced his administrative review and may adversely affect his future employment.

The employer's written notice to the appellant informed him that he had engaged in "Unbecoming/Unprofessional Conduct" and violated the "Safe Return to Campus procedures." The notice also specifically provided that the appellant had:

– failed "to take the mandatory GMU SRTC Training,"

– failed "to familiarize himself with the relevant environmental health and safety policies and procedures related to work and/or activities on campus" and Covid-19 "protocols,"

– failed "to remain off campus after receiving a yellow status after completing the GMU Covid-19 health check," and

– failed "to follow Covid-19 testing guidelines[, which required] utilizing the GMU Covid-19 testing after expressing symptoms."

In the written decision, the hearing officer identified one of the issues in the case as "[w]hether [the appellant] engaged in the behavior described in the [w]ritten [n]otice." He found that the appellant had violated one of the employer's COVID-19 safety rules by returning to campus in fewer than ten days after receiving "a yellow email," thereby "creat[ing] a risk of bodily harm by possibly exposing others to COVID-19." Based on this conclusion, the hearing officer upheld GMU's decision to terminate the appellant's employment. He did not make findings on the other misconduct referenced in the notice.

Code § 2.2-3005.1(C) requires that the hearing officer's written decision "contain findings of fact as to the material issues in the case and the basis for those findings." A material issue is "[a]n issue that must be decided in order to resolve a controversy." Issue , Black's Law Dictionary (11th ed. 2019). See generally Jones v. Commonwealth , 296 Va. 412, 415, 821 S.E.2d 540 (2018) (considering the standard dictionary definition of an undefined statutory term).

The dispositive question here is whether, after the hearing officer concluded that the appellant's termination was justified based on one violation, the other allegations of misconduct in the written notice were "material issues in the case" pursuant to Code § 2.2-3005.1(C). The clear answer is that, in light of the hearing officer's conclusion that one basis for termination existed, it was no longer material for him to resolve whether other bases also supported the termination. See Va. Dep't of Transp. v. Stevens , 53 Va. App. 654, 662, 674 S.E.2d 563 (2009) (holding that whether one of the employee's two instances of alleged misconduct occurred was irrelevant to the disposition of the case because if one "incident warrant[ed] termination, it [did] not matter whether" the other incident also would). Consequently, the hearing officer complied with his statutory duty to make written findings that resolved the material issues in the case.

2. EDR's Administrative Review

The appellant argues that EDR's director, on administrative review, changed a finding of fact made by the hearing officer. Specifically, he contrasts the hearing officer's conclusion that his actions created a "risk" of bodily harm to others with the director's recitation that he created a "threat" of bodily harm to others. The appellant suggests that a "risk," unlike a "threat," does not justify terminating employment. Essentially, he believes that the director changed the hearing officer's factual finding of a risk to a threat in order to justify the termination. This claim must be reviewed in light of the hearing officer's and the director's entire opinions.

The hearing officer found that the appellant's return to campus in violation of safety protocols "created a risk of bodily harm by possibly exposing others to COVID-19" and therefore supported the termination. On administrative review, consistent with the hearing officer's language, the director described the hearing officer's finding as one that the appellant's "behavior ‘created a risk of bodily harm.’ " Elsewhere, the review opinion referenced that the appellant's "conduct violated a...