Va. Dep't of Alcoholic Beverage Control v. Tyson

• Decision Date: 27 May 2014
• Docket Number: Record No. 1352–13–2.
• Citation: 63 Va.App. 417,758 S.E.2d 89
• Court: Virginia Court of Appeals
• Parties: VIRGINIA DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL v. Don C. TYSON.

63 Va.App. 417

758 S.E.2d 89

VIRGINIA DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL

v.Don C. TYSON.

Record No. 1352–13–2.

Court of Appeals of Virginia, Richmond.

May 27, 2014.

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.

Present: FELTON, C.J., KELSEY and PETTY, JJ.

KELSEY, Judge.

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. SeeCode § 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 receivingmultiple 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 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.

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 precedentsand 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 the employee to tell his side of the story.” Gilbert v. Homar, 520 U.S. 924, 929, 117 S.Ct. 1807, 1811, 138 L.Ed.2d 120 (1997) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (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.

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...