PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Goodwyn, JJ., and Lacy, S.J.
VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY
v. Record No. 080976 OPINION BY
JUSTICE BARBARA MILANO KEENAN
April 17, 2009
MAYNARD QUESENBERRY
FROM THE COURT OF APPEALS OF VIRGINIA
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
∗
The Department of Human Resource Management Policies and
Procedures Manual, in Policy 1.60, sets forth certain “standards
of conduct” and describes levels of offenses ranging from the
lowest level, “Group I,” to the highest level, “Group III.”
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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.
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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
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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
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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
6
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
7
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 “exclusive right” to manage its affairs and
operations as provided by Code § 2.2-3004(B). The University
contends that the circuit court erred in employing a broader
standard of review than permissible by making its own factual
findings and by basing its decision on those factual findings.
The University further asserts that the circuit court and the
Court of Appeals should have approved the hearing officer’s
decision because Quesenberry failed to demonstrate that the
hearing officer’s decision was contradictory to law.
The University also argues that the Court of Appeals erred
in applying an analysis grounded on “sexual harassment” claims
brought under Title VII. The University contends that although
certain language in the policy mirrors language in federal
regulations defining “sexual harassment” for purposes of Title
VII, this similarity does not prevent state agencies in Virginia
8
from formulating additional, more stringent regulations and
policies than those contained in Title VII.
In response, Quesenberry asserts that the Court of Appeals
correctly affirmed the circuit court’s judgment because the
hearing officer’s decision was contradictory to law. He argues
that the Court of Appeals properly applied an analysis based on
sexual harassment claims brought under Title VII, because a
portion of the policy mirrors language applicable to such Title
VII claims. Quesenberry argues that the Court of Appeals
correctly concluded that his conduct was not severe and
pervasive, and that there was no objective evidence that he
created a hostile or abusive work environment. Quesenberry
further maintains that because the hearing officer determined
that his conduct did not constitute sexual harassment, he should
not have been disciplined for failure to comply with the policy.
In addition, Quesenberry argues that the hearing officer’s
decision was contradictory to his own factual findings because
the officer determined that the student had overreacted to
Quesenberry’s inquiries. Thus, Quesenberry concludes that the
hearing officer’s own factual findings required that the hearing
officer resolve the grievance in favor of Quesenberry. We
disagree with Quesenberry’s arguments.
In a plainly stated statutory framework, the Code of
Virginia provides grievance procedures applicable to state
9
agency employees, granting an employee a right to a hearing
before a designated hearing officer when that employee has been
formally disciplined. See Code §§ 2.2-3001 and 2.2-3004(A)(i).
This grievance procedure applies to all non-probationary state
employees, including non-probationary employees of the
University. See Code § 2.2-3001(A) and 8 VAC § 105.
As provided by statute, a hearing officer appointed by the
Department of Employment Dispute Resolution has certain powers
and duties with regard to a grievance hearing, including the
consideration of evidence and the determination of appropriate
remedies. Code §§ 2.2-3005 and 2.2-3005.1. The hearing
officer’s decision, which must be in writing, shall contain
findings of fact and the hearing officer’s basis for making
those factual findings. Code § 2.2-3005.1(C)(i) and (ii). The
hearing officer’s decision is final and binding “if consistent
with law and policy.” Code § 2.2-3005.1(C)(iii).
If a grievant contends that the hearing officer’s decision
is contrary to the “policy” of the state agency employing the
grievant, the grievant may request that the decision be reviewed
by the Director of the Department of Human Resources Management,
who shall determine whether the hearing officer’s decision “is
consistent with [agency] policy.” Code § 2.2-3006(A). In the
present case, Quesenberry did not request such a “policy”
review.
10
Instead, as permitted by Code § 2.2-3006(B), Quesenberry
appealed to the circuit court from the hearing officer’s
decision on the ground that the hearing officer’s decision was
“contradictory to law.” Under that statutory provision, if an
unsuccessful grievant establishes that the hearing officer’s
decision is “contradictory to law,” the circuit court may
reverse or modify the hearing officer’s decision. See Code
§ 2.2-3006(B).
The Court of Appeals previously has held that a party
appealing from a hearing officer’s decision to a circuit court
is required to “specify how that decision [was] ‘contradictory’
to law and what ‘law’ [was] thereby being contradicted.” Tatum
v. Virginia Dept. of Agric., 41 Va. App. 110, 122, 582 S.E.2d
452, 458 (2003) (quoting Virginia Dept. of State Police v.
Barton, 39 Va. App. 439, 445-46, 573 S.E.2d 319, 322 (2002)).
The appealing party must “identify [a] constitutional provision,
statute, regulation or judicial decision which the [hearing
officer’s] decision contradicted.” Tatum, 39 Va. App. at 122,
582 S.E.2d at 458 (quoting Barton, 39 Va. App. at 446, 573
S.E.2d at 323).
We agree with this analysis of the burden of a litigant who
appeals a hearing officer’s decision to a circuit court. The
General Assembly has articulated a very narrow standard of
review to be applied by the circuit court in such appeals.
11
Because this standard focuses solely on the question whether the
hearing officer’s decision is contradictory to any applicable
law, the party appealing the hearing officer’s decision properly
bears the burden of identifying the law thereby contradicted.
In the present case, Quesenberry failed to identify to the
circuit court any applicable constitutional provision, statute,
regulation, or court precedent of this Commonwealth that the
hearing officer contradicted, and appeared to rely solely on
federal decisions interpreting Title VII. This reliance was
misplaced, because Quesenberry’s grievance did not involve a
Title VII claim but was an administrative proceeding conducted
under the Virginia state grievance procedures provided in Code
§§ 2.2-3000 through -3008.
In addition, because the hearing officer specifically
concluded that Quesenberry had not engaged in “sexual
harassment,” there was no issue of “sexual harassment” before
the circuit court in Quesenberry’s appeal. The hearing
officer’s decision was based on Quesenberry’s violation of the
second paragraph of section 2.1 of the policy, which prohibits
any conduct based on a person’s gender that unreasonably
interferes with the person’s work or participation in University
activities. Thus, the federal decisions addressing “sexual
harassment” were not germane in any respect to the issue before
the circuit court.
12
The Court of Appeals engaged in the same erroneous analysis
of “sexual harassment” as did the circuit court. Instead of
addressing the portion of the policy that formed the basis of
the hearing officer’s decision to determine whether that
decision was “contradictory to law,” the Court of Appeals
examined a different provision in the policy prohibiting sexual
harassment. The Court further considered as persuasive
authority federal court decisions interpreting “sexual
harassment” under Title VII, when the hearing officer had
explicitly rejected “sexual harassment” as a basis for his
decision.
This appeal, therefore, is presented to us in an unusual
posture, in which the circuit court failed to conduct the
required review to determine whether the hearing officer’s
decision was “contradictory” to applicable law. See Code § 2.2-
3006(B). Instead, the circuit court, in the absence of any
statutory authority, made its own factual findings and
determined that Quesenberry did not engage in “sexual
harassment.”
The Court of Appeals explained the proper review process
several years ago in Barton:
These statutes clearly provide [that] the hearing officer
is to act as fact finder and the Director of the Department
of Human Resource Management is to determine whether the
hearing officer’s decision is consistent with policy. In
the grievance process, neither of these determinations is
13
subject to judicial review, but only that part of the
grievance determination “contradictory to law.”
39 Va. App. at 445, 573 S.E.2d at 322; accord Tatum, 41 Va. App.
at 121-24, 582 S.E.2d at 458-59. Here, because Quesenberry
failed to identify any applicable law that was contradicted by
the hearing officer’s decision, Quesenberry’s appeal to the
circuit court failed from its inception. See Tatum, 41 Va. App.
at 122, 582 S.E.2d at 458; Barton, 39 Va. App. at 445-46, 573
S.E.2d at 322-23.
Nevertheless, Quesenberry asks us to consider the issue
whether the hearing officer’s decision was contrary to the
hearing officer’s own factual findings. We do not consider this
issue, or the preliminary question whether a factual review of
this very limited nature is permitted under the applicable
statutory review process, because the record fails to show that
Quesenberry made this argument either in the circuit court or in
the Court of Appeals. See Prince Seating Corp. v. Rabideau, 275
Va. 468, 469, 659 S.E.2d 305, 306-07 (2008); Manassas Autocars,
Inc. v. Couch, 274 Va. 82, 89, 645 S.E.2d 443, 447 (2007);
Jackson v. Commonwealth, 266 Va. 423, 436 n.1, 587 S.E.2d 532,
542 n.1 (2003). In addition, Quesenberry has failed to assign
cross-error to the Court of Appeals’ judgment on this basis.
See Rule 5:18(b). Having failed to do so, Quesenberry is
precluded from asking us to affirm the Court of Appeals’
14
judgment on that basis. See id.; Hicks v. Mellis, 275 Va. 213,
221 n.2, 657 S.E.2d 142, 146 n.2 (2008); Jackson, 266 Va. at 436
n.1, 587 S.E.2d at 542 n.1; Board of Supervisors of Fairfax
County v. Lake Services, Inc., 247 Va. 293, 298 n.*, 440 S.E.2d
600, 603 n.* (1994).
We hold that because Quesenberry failed to identify any
applicable law that the hearing officer’s decision contradicted,
both the Court of Appeals and the circuit court lacked any basis
for reviewing the hearing officer’s decision. See Code § 2.2-
3006(B); Tatum, 41 Va. App. at 122-24, 582 S.E.2d at 458-59;
Barton, 39 Va. App. at 445-47, 573 S.E.2d at 322-24.
Accordingly, we further hold that the Court of Appeals erred in
affirming the circuit court’s judgment reinstating Quesenberry
to his previous position of employment and awarding him
compensation for accrued wages.
For these reasons, we will reverse the Court of Appeals’
judgment, and will enter final judgment reinstating the hearing
officer’s decision.
Reversed and final judgment.
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