Virginia Polytechnic v. Quesenberry

• Decision Date: 17 April 2009
• Docket Number: Record No. 080976.
• Citation: 674 S.E.2d 854
• Parties: VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY v. Maynard QUESENBERRY.
• Court: Virginia Supreme Court

674 S.E.2d 854

VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY v. Maynard QUESENBERRY.

Record No. 080976.

Supreme Court of Virginia.

April 17, 2009.

Stephen F. Capaldo, Associate University Legal Counsel (Kay Heidbreder, University Legal Counsel; Mary Beth Nash, Associate University Legal Counsel; Amanda E. Burks, Associate University Legal Counsel, on brief), for appellant.

Jonathan Rogers, Roanoke, for appellee.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and GOODWYN, JJ., and LACY, S.J.

OPINION BY Justice BARBARA MILANO KEENAN.

In this case involving an appeal under Code § 2.2-3006(B) from a grievance determination, we consider whether the Court of Appeals erred in affirming the circuit court's judgment that a hearing officer's decision upholding the termination of a state employee was "contradictory to law." We also consider whether the Court of Appeals erred in rendering judgment based on the elements of "sexual harassment" discussed in court decisions applying Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII).

Maynard Quesenberry was employed as a business manager in the Communications Network Services department at Virginia Polytechnic Institute and State University (the University) for 29 years. While employed by the University, Quesenberry received favorable job performance evaluations. However, in April 2005, Quesenberry received a "Group II" written disciplinary notice suspending him from work for four days for misusing a university-owned computer and for gaining access to computer websites containing pornographic content.^*

In 2006, the University terminated Quesenberry's employment after issuing him a "Group III" written disciplinary notice, which was based on a discussion Quesenberry had with a female student in violation of University Policy No. 1025 (the policy). After receiving this notice of termination, Quesenberry exhausted his internal administrative remedies and ultimately requested a hearing before an administrative hearing officer appointed by the Department of Dispute Resolution pursuant to Code §§ 2.2-3003 through -3005.

At a hearing held in September 2006, the hearing officer made the following factual findings. The hearing officer found that Quesenberry participated as a volunteer coach and a board member of a boxing club for "disadvantaged" youth (the club), which was a non-profit program that was not affiliated with the University.

The club held various fundraising events to support its activities, and club members discussed a project that would include development of a "boxing calendar," which would feature photographs of young, attractive women posing in the context of boxing activities. The club members agreed that any such calendar must be produced in "good taste."

Quesenberry discussed the calendar with another male University employee who worked as a mail supervisor under Quesenberry's direction. The mail supervisor, acting on his own initiative, asked several female students whether they would be interested in posing for the calendar. Quesenberry later learned about this conduct and directed the mail supervisor to stop initiating such conversations.

The mail supervisor, contrary to Quesenberry's directive, initiated a discussion about the calendar with a 20-year-old female student who worked for a student-run organization. The mail supervisor informed Quesenberry that he should meet this student because "she might be interested in [the boxing calendar] fundraiser."

The two men visited the student in her office located on the University campus. Quesenberry explained to the student that he was in search of models to pose for pictures in the calendar, that these pictures would be "tastefully done," and that the women would be photographed wearing "short shorts" or a bathing suit. The student reported that during this conversation, which lasted less than 15 minutes, she was "uncomfortable" and thought that the men were "objectifying" her.

As a result of her conversation with Quesenberry and the mail supervisor, the student began closing and locking her office door. The student also took a less direct route to her office to avoid the possibility of encountering the two men.

Based on these factual findings, the hearing officer rendered a decision under the policy, which was entitled "Anti-Discrimination and Harassment Prevention Policy." The portion of the policy on which the hearing officer relied, section 2.1, is labeled "Prohibited Acts." The hearing officer cited the second paragraph of that section, which states in relevant part:

Discrimination/Harassment includes the following behaviors:

....

Conduct of any type ... based upon a person's ... gender ... and which unreasonably interferes with the person's work or academic performance or participation in University activities, or creates a working or learning environment that a reasonable person would find hostile, threatening or intimidating.

The hearing officer concluded that Quesenberry failed to comply with this portion of the policy.

The hearing officer found that Quesenberry "focused on the [s]tudent because she was a young attractive female." Also, the hearing officer concluded that the student's work performance and participation in University activities had diminished as a result of her encounter with Quesenberry, and that the student had become "introverted" in a manner that materially affected her and other people with whom she worked. Thus, the hearing officer concluded that Quesenberry's actions unreasonably interfered with the student's work and participation in University activities.

The hearing officer stated that while the student overreacted to her encounter with the two men, if the hearing officer disregarded that overreaction, the remaining facts supported the University's position concerning the student's response. The hearing officer further noted that Quesenberry's conduct did not constitute "sexual harassment" in the "legal sense" because the conduct was not severe or pervasive.

The hearing officer reduced Quesenberry's disciplinary action from a "Group III" offense to a "Group II" offense because, in the hearing officer's opinion, Quesenberry did not intentionally engage in inappropriate behavior. However, the hearing officer upheld Quesenberry's termination from employment based on Quesenberry's accumulation of two "Group II" offenses within three years.

As permitted by Code § 2.2-3006(B), Quesenberry appealed from the hearing officer's decision to the Circuit Court of Montgomery County and asked that the circuit court reverse the hearing officer's decision as being "contradictory to law." Quesenberry further requested that the circuit court reinstate his employment and award him accrued compensation, benefits, and attorney's fees. After conducting a hearing, the circuit court determined that the hearing officer's decision was "contrary to law" and ordered that Quesenberry be reinstated in his employment and be compensated for wages accrued since the date of his termination.

In its final judgment order, the circuit court listed several reasons in support of its decision: (1) Quesenberry's conduct was not "sexual harassment;" (2) the student was not offended by her "brief encounter" with Quesenberry; (3) there was no evidence that the student's work or participation in school activities were "in any way impacted" by the encounter; (4) "[n]o reasonable person" could describe the environment in which the encounter occurred as a hostile or intimidating environment; (5) Quesenberry did not engage in unwelcome sexual advances or verbal or physical conduct of a sexual nature; (6) Quesenberry was not the student's supervisor; (7) the hearing officer found that the student had overreacted to the encounter; and (8) there was no evidence of severe or pervasive conduct "giving rise to sexual harassment."

The University preserved its objection to the circuit court's final judgment order, noting that neither Quesenberry nor the circuit court had identified a statute, regulation, or rule of law that was contradicted by the hearing officer's decision. The University appealed from the circuit court's judgment to the Court of Appeals.

The Court of Appeals affirmed the circuit court's judgment in Virginia Polytechnic Institute and State University v. Quesenberry, 51 Va.App. 553, 659 S.E.2d 546 (2008). Although the hearing officer specifically had found that Quesenberry's conduct did not constitute "sexual harassment," the Court of Appeals nevertheless analyzed his appeal under that particular section of the policy. Id. at 562, 659 S.E.2d at 551.

According to the Court of Appeals, that particular section of the policy prohibiting "sexual advances, requests for sexual favors, [or other verbal] or physical conduct of a sexual nature" was "taken directly from 29 C.F.R. 1604.11(a), the federal regulation defining sexual harassment as it pertains to Title VII." Id. at 560, 659 S.E.2d at 550. The Court of Appeals applied reasoning contained in some federal court decisions interpreting that definition of "sexual harassment" and affirmed the circuit court's judgment, holding that the hearing officer's decision was contradictory to law. Id. at 565, 659 S.E.2d at 552.

The Court of Appeals concluded that because Quesenberry had not engaged in sexual advances or other conduct that could be deemed sexual in nature, his conduct "did not fall within the ambit of [the policy]." Id. at 564, 659 S.E.2d at 552. We awarded the University this appeal because the case involves a matter of significant precedential value. See Code § 17.1-410(B).

The University argues that the hearing officer's decision should be upheld because the decision was not "contradictory to law" under the standard of review set forth in Code § 2.2-3006(B). According to the University, the General Assembly specified this narrow standard of review in recognition of a state agency's ...