Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ.,
and Russell and Koontz, S.JJ.
VIRGINIA DEPARTMENT OF CORRECTIONS
OPINION BY
v. Record No. 092501 SENIOR JUSTICE CHARLES S. RUSSELL
April 21, 2011
TAMMY ESTEP
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Frederick G. Rockwell, III, Judge
This is an appeal from the judgment of a circuit court
implementing the decision of a hearing officer pursuant to
Code § 2.2-3006(D), a part of the State Grievance Procedure
provided for the benefit of employees of the Commonwealth,
Code § 2.2-3000 et seq.
Facts and Proceedings
The facts will be stated in the light most favorable to
the grievant, who was the prevailing party before the hearing
officer and in the circuit court. Prior to November 2006,
Tammy Estep (the grievant) was employed by the Virginia
Department of Corrections (the DOC) as Superintendent of the
Central Virginia Correctional Unit (CVCU). Her superiors had
consistently given her good performance ratings. On November
13, 2006, she was involuntarily demoted to a lower position.
She filed a grievance pursuant to Code § 2.2-3003 that
ultimately came before a hearing officer.
After hearing 36 witnesses over three days, the hearing
officer found that the grievant’s demotion was unwarranted.
He entered an order directing the DOC to
reinstate the Grievant to a comparable position as
either a Superintendent or an Assistant Warden, such
that she will be in the same Pay Band as she was
when she was involuntarily demoted. The Hearing
Officer orders the agency to provide the Grievant
similar housing as she had in her prior position or
a supplement to her pay to compensate her for that
housing.
The order directed the DOC to reimburse the grievant for any
pay she had lost as a result of the demotion. The hearing
officer stated that he was “loathe to disrupt any continuity
that has been established at the Grievant’s prior location”
but nevertheless ordered:
If the Agency is unable to provide an Assistant
Wardenship, which is in the same Pay Band that the
Grievant occupied when she was Superintendent, along
with the appropriate housing or housing allowance,
the Hearing Officer orders that the Agency return
the Grievant to her original position with her
original Pay Band and the housing provided at that
Unit.
Code § 2.2-3006(A) provides for administrative review of
a hearing officer’s decision at the request of either party to
a grievance proceeding to ensure that it is “consistent with
policy.” Code § 2.2-3006(B) provides for appeal of such a
decision to the circuit court if either party contends that
the decision is “contradictory to law.” Because neither party
sought administrative or judicial review of the hearing
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officer’s decision in the present case, the decision became
“final and binding” pursuant to Code § 2.2-3005.1(C).
Because the grievant’s former position at CVCU had been
filled, the DOC attempted to comply with the hearing officer’s
order by transferring the grievant to a newly-created position
as Deputy Warden at the Powhatan Reception and Classification
Center (PRCC) at the same rate of pay but with different
duties, responsibilities and authority. The grievant
contended that the position at PRCC was not a “comparable
position” to that from which she had been involuntarily
demoted. She brought the present proceeding by filing a
petition for implementation of the hearing officer’s order in
the Circuit Court of Chesterfield County pursuant to Code
§ 2.2-3006(D), asserting that the DOC had incorrectly and
inadequately implemented the Hearing Officer’s order.
The court received a stipulation of facts and exhibits
and heard testimony ore tenus. The court found that the
grievant’s new position, while compensated at the same pay
band, was not comparable to her former position with regard to
duties, responsibilities, opportunities for professional
training and advancement, or rank within the career path of
the DOC. The court held that the DOC had failed to implement
the hearing officer’s order. Because the DOC had failed to
place the grievant in a comparable position, the court ordered
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her restored to her original position at CVCU. The court also
awarded attorney’s fees to the grievant pursuant to Code
§ 2.2-3006(E).
The DOC appealed the circuit court’s judgment to the
Court of Appeals. By an opinion and order entered
December 15, 2009, that Court held that it lacked jurisdiction
over the appeal because it was neither an appeal of the
decision of a circuit court on appeal from the decision of an
administrative agency nor an appeal of a grievance hearing
decision. The Court held that while those cases are within
the statutory jurisdiction of the Court of Appeals, the
present case is not. The Court of Appeals transferred the
appeal to this Court pursuant to Code § 8.01-677.1. Virginia
Dep't of Corr. v. Estep, 55 Va. App. 386, 388-91, 685 S.E.2d
891, 893-94 (2009).
Analysis
This appeal involves neither the factual basis nor the
legal correctness of the hearing officer’s decision. Our
consideration is confined to the circuit court’s decision
implementing the hearing officer’s order. The appeal presents
a mixed question of law and fact. On appellate review, we
defer to the trial court’s findings of fact if the record
contains evidence to support them but we review conclusions of
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law de novo. Luria v. Board of Dirs., 277 Va. 359, 365, 672
S.E.2d 837, 840 (2009).
The hearing officer determined that the grievant had been
involuntarily demoted without just cause and entered an order
designed to rectify that injustice. Although the hearing
officer expressed reluctance to “disrupt any continuity” at
the grievant’s former workplace if her position had been
filled by another person since her demotion and transfer, he
nevertheless ordered DOC to restore her to her original
position if DOC could not provide her with a comparable
position elsewhere. In the circuit court, the grievant
contended that her new position at PRCC was not comparable to
her original position and the DOC denied that assertion.
The record before the circuit court included the
following evidence relevant to that issue: At CVCU the
grievant served as head of the unit; managed and directed the
budget, planning and personnel; was responsible for complex
administrative duties including developing and directing
policies and procedures; served as public relations director
for the facility and was entitled to participate in the Senior
Management Training Institute. She attended meetings and
conferences that provided an advanced level of management
training. Her title was “Superintendent, Senior.”
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In her new position at PRCC, her title was “Deputy
Warden.” She was not the unit head, did not formulate
policies, did not handle budget issues, did not plan or
develop projects and was not permitted to participate in
senior management training programs. Her former rank within
the hierarchy of the DOC had been “Security Manager III” and
she reported to a “Security Manager IV.” In her new position,
her rank was reduced to “Security Manager II” and she reported
to a “Security Manager III,” the rank she had formerly
occupied.
We hold that the circuit court’s finding that the two
positions were not comparable was supported by the evidence.
“Comparable” is defined as “equivalent, similar.” Webster’s
Third New International Dictionary 461 (3d ed. 1993). It is
apparent from the context of the hearing officer’s decision
that he used the term in that sense because the purpose of his
order was to make the grievant whole. If the DOC could not
furnish a comparable substitute, the grievant was to be
restored to her original position. Because the DOC was unable
to provide a comparable substitute position, implementation of
the hearing officer’s order required restoration of the
grievant to her original position.
In a motion to reconsider the circuit court’s ruling, and
in an assignment of error here, the DOC argues that the
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hearing officer had no legal authority to restore the grievant
to her original position after it had been filled. The
circuit court noted in its letter opinion denying the motion
to reconsider that the parties had agreed that “no part of the
hearing officer’s decision was contradictory to law.”
Further, the DOC failed to raise that question by appealing
the hearing officer’s decision to the circuit court to
challenge its legal correctness pursuant to Code § 2.2-
3006(B). Accordingly, we deem that argument waived and do not
consider it.
Conclusion
For the reasons stated, we will affirm the judgment of
the circuit court in all respects, including its award of
attorney’s fees. Because the grievant prevailed on appeal as
well as in the circuit court, she is entitled to an award of
attorney’s fees incurred on appeal. Accordingly, we will
remand the case to the circuit court for ascertainment and
award of appellate attorney’s fees.
Affirmed and remanded.
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