Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell,
Keenan, JJ., and Whiting, Senior Justice
VIRGINIA DEPARTMENT OF TAXATION
OPINION BY
v. Record No. 941729 SENIOR JUSTICE HENRY H. WHITING
November 3, 1995
MAURIE L. DAUGHTRY
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
VIRGINIA DEPARTMENT OF CORRECTIONS
v. Record No. 941955
JAMES DILLON
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Charles L. McCormick, III, Judge
In these appeals, the common issue is whether state-agency
employers implemented the decisions of two grievance panels
issued pursuant to the provisions of former Code § 2.1-114.5:1.
The plaintiffs in these cases are state employees entitled
to file grievances under the provisions of former Code § 2.1-
114.5:1, in modified form now Code §§ 2.1-116.05 to -116.07.
Following are the pertinent provisions of the statutes in effect
when these issue arose:
Definition of grievance. -- A grievance shall be a
complaint or dispute by an employee relating to his
employment, including but not necessarily limited to
(i) disciplinary actions, including dismissals,
demotions and suspensions[.]
Former Code § 2.1-114.5:1(A) (Supp. 1994).
Management responsibilities. -- Management
reserves the exclusive right to manage the affairs and
operations of state government. Accordingly, the
following complaints are nongrievable: . . . (vii) the
. . . transfer [and] assignment . . . of employees
within the agency.
Former Code § 2.1-114.5:1(B) (Supp. 1994).
The decision of the panel shall be final and
binding and shall be consistent with
provisions of law and written policy.
Former Code § 2.1-114.5:1(D)(4)(d) (Supp. 1994).
Either party may petition the circuit court having
jurisdiction in the locality in which the grievant is
employed for an order requiring implementation of the
panel decision.
Former Code § 2.1-114.5:1(F) (Supp. 1994).
I.
Maurie L. Daughtry was first employed in the Norfolk
district office of the Virginia Department of Taxation as a field
representative, dealing in person with delinquent taxpayers. In
July 1990, the Department terminated Daughtry's employment for a
number of asserted reasons. A grievance panel determined that
the Department proved several of these reasons, which included
lying to management, disruptive behavior, arguing, and
insubordination, but reversed Daughtry's dismissal and imposed a
30-day suspension. The panel also recommended that she be
transferred to another office.
The Department reinstated Daughtry and transferred her to
its Peninsula district office in Newport News. On March 13,
1992, Daughtry's employment was again terminated because of her
alleged unsatisfactory job performance and the Department's
receipt of information from the office of Daughtry's psychiatrist
and another Department employee that Daughtry had threatened to
kill one of her supervisors and herself if she were terminated.
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Daughtry appealed that decision to a grievance panel. The
panel held a hearing on whether the Department was justified in
terminating Daughtry because of the threats and her
unsatisfactory job performance. At that hearing, a witness
described the Department's receipt of information about the
threats, and Daughtry did not deny making them. The grievance
panel found that Daughtry's termination "was motivated in part
because of the alleged immediate need to remove the employee from
the premises of the Peninsula Office."
The panel "modifie[d] the termination action by the agency
because of mitigating circumstances and recommend[ed]
reinstatement to the same or similar position" after Daughtry was
evaluated by a mental health professional who would certify that
Daughtry was fit to return to the stresses and demands of her
position in the Department. The panel also recommended that
Daughtry be assigned to an office other than the Peninsula
office, where Dallas Parker, a supervisor with whom Daughtry had
a problem, worked.
After being notified that it could not require or recommend
the mental health evaluation, the panel modified its decision by
(1) "order[ing Daughtry's] reinstatement to the same or similar
position," (2) deleting its recommendations of an evaluation by a
mental health professional and a transfer to another office, and
(3) adding the following: "The panel did not feel that the
Agency was justified in termination either for threatening a
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supervisor or unsatisfactory job performance."
Upon the conclusion of the Department's unsuccessful appeal
of the amended panel decision, the Department reinstated Daughtry
as an employee. However, the Department transferred her
temporarily to its Richmond office and advised Daughtry that she
could elect to be assigned permanently to that office or to any
district office other than the Norfolk, Peninsula, or Bristol
offices. 1 The Department also directed Daughtry to undergo a
mental health evaluation to certify her "readiness for duty"
prior to reporting for work on December 16, 1992. Although
Daughtry reported for work, she did not provide the required
certificate and she did not begin work.
Thereafter, the Department advised Daughtry that if she
failed to report for work with the required certification by
December 23, this would be considered as her resignation.
Whereupon, Daughtry filed a petition in the circuit court to
implement the panel's decision under the provisions of former
Code § 2.1-114.5:1(F). She also secured a temporary injunction
restraining the Department from terminating her employment
pending a hearing.
1
The record discloses that Richmond is the closest office to
Daughtry's home in Chesapeake, other than the Norfolk and
Peninsula offices where Daughtry had experienced prior
disciplinary problems.
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Following an ore tenus hearing, the chancellor held that the
Department had not implemented the panel's decision and ordered
it to reinstate Daughtry in "the same or similar position in its
Newport News or Norfolk Office" without requiring Daughtry "to
undergo a mental evaluation as a condition for reinstatement."
The Department appeals.
The Department contends that since the grievance panel "did
not find [that] the death threat was not made," it would have
been irresponsible not to transfer Daughtry from the office in
which the evidence showed that the death threats were made.
Thus, the Department argues that its transfer of Daughtry to
another office and its requirement of a mental health evaluation
before she resumed work were "within management's prerogative
[under former Code § 2.1-114.5:1(B)] and consistent with its duty
to provide a safe working environment for all employees."
Daughtry contends that "the agency's attempt to block Ms.
Daughtry's return to duty was in bad-faith," and that we decided
this issue adversely to the Department's contention in Zicca v.
City of Hampton, 240 Va. 468, 397 S.E.2d 882 (1990). We disagree
with Daughtry.
Zicca involved an employer's effort to subvert the grievance
panel's decision by the subterfuge of assigning Zicca on paper to
his former position, but never having him perform the duties of
that position, and transferring him the following day to another
position. Id. at 469-71, 397 S.E.2d at 882-83. Here, there was
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no finding or evidence of an attempted subterfuge or bad faith;
rather, the Department informed Daughtry by letter dated three
weeks before she returned that she would be assigned to the
Richmond office.
Further, the employer in Zicca gave no reason for Zicca's
transfer; here, the record provides uncontradicted evidence of a
compelling necessity to transfer Daughtry from the office in
which she had made threats to kill her supervisor. And the
chancellor could not direct Daughtry's reassignment to the
Norfolk office because such reassignments are the sole
responsibility of the employer under the provisions of former
Code § 2-114.5:1(B). Accordingly, we conclude that the
Department, in the proper exercise of its management
responsibilities reserved under this code section, was justified
in transferring Daughtry to its Richmond office.
Next, we consider whether the Department had the right under
these circumstances to require that Daughtry obtain a mental
health evaluation before returning to work, as it claims on
appeal. Daughtry successfully contended before the chancellor
that the Department had no right to impose this condition upon
the panel's order reinstating Daughtry, especially since it had
not adopted a written policy giving it the right to require that
its employees submit to mental examinations. Again, we disagree
with Daughtry.
Given the serious nature of Daughtry's threats, the evidence
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of her apparently unstable mental condition, and the Department's
responsibility for the safety of the supervisors and employees in
the Richmond office, we think that the Department was justified
in requiring Daughtry to establish her fitness to return to work.
Nor, under the circumstances of this case, do we think that the
Department was required to have adopted a written policy giving
it such a right, as Daughtry urges. 2 See Hill v. City of Winona,
454 N.W.2d 659, 661 (Minn. App. 1990) (employer can require
employee to submit to psychological examination if unwritten
policy is reasonably applied). Accordingly, we hold that the
Department was justified in requiring that Daughtry submit to and
pay for a mental examination by a mental health professional of
her choice prior to resuming work.
Therefore, we will reverse the final decree of the
chancellor and enter a final decree dismissing the petition.
2
We note that an unwritten policy does not give the
Department unfettered discretion to require employees to submit
to mental examinations. If the Department unreasonably required
such an examination, the employee could have refused to submit to
the examination and raised the issue as a grievance if the
employee was disciplined as a result of such refusal. Former
Code § 2.1-114.5:1(A)(i) (Supp. 1994). And the employee's right
to raise the issue has not been abrogated by the amendments to
the grievance statute. Code § 2.1-116.06(A)(i).
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II.
James R. Dillon was employed by the Bureau of Industrial
Enterprises, a division of the Virginia Department of Corrections
(individually and collectively the Department), as the supervisor
of the Halifax Correctional Sign Shop. After he failed to report
to work on two days for which he had requested and been denied
annual leave to attend a non-job-related seminar, Dillon was
terminated in March 1992 for "[f]ailure to follow supervisor's
instructions, perform assigned work or otherwise comply with
applicable established written policy." Upon Dillon's appeal to
a grievance panel, the panel "felt that the written notice
[specifying the grounds for termination] was warranted."
However, it modified Dillon's termination to a 30-day suspension
without pay because of "mitigating circumstances."
During Dillon's absence from work following his first
termination, the Department discovered that the monthly sales
records of the Sign Shop prepared by inmate workers were inflated
by $432,630 or 137.7% in late 1991 and early 1992, four months of
the period in which Dillon was responsible for verifying the
accuracy of these records. Although inmate workers prepared
these reports and incentive payments were made to some of the
inmate workers based upon the monthly sales records, Dillon
signed them without verifying their accuracy. The reports were
then sent to the Department which made substantial overpayments
to some of the inmate workers as a result of these inflated
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figures.
Dillon's employment was again terminated because of his
"[f]ailure to adequately perform assigned work and comply with
[the] applicable written pay plan for [the Sign S]hop." Dillon
appealed that decision to another grievance panel. Although
upholding the grounds for termination, the panel overturned the
termination decision and directed that Dillon be suspended for
another 30 days, again because of "mitigating circumstances."
Upon Dillon's reinstatement, he was not returned to his
former position as Sign Shop Supervisor, but was assigned to the
position of Building and Grounds Supervisor at the Dillwyn
Correctional Center. Pursuant to former Code § 2.1-114:5:1(F),
Dillon filed a petition in the circuit court for implementation
of the grievance panel decisions. Concluding that the panel had
no authority to reinstate Dillon except to the position from
which he was discharged, the trial court held that "the result of
the panel opinion in this case is reinstatement of this employee
to his former position" and that the Department had not complied
with the panel's decision. Accordingly, the trial court ordered
the Department to reinstate Dillon to his former position as Sign
Shop Supervisor.
The Department argues that the trial court erred in ordering
this reinstatement because (1) neither panel ordered Dillon to be
reinstated to his former or a similar position, (2) Dillon's
transfer was for compelling reasons related to his job
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performance, (3) former Code § 2.1-114.5:4(B) gave the Department
the right to transfer Dillon to another job for which he was
well-qualified at the same pay, and (4) the Department was
required to hire a replacement for Dillon in his former job while
his first grievance was pending. Dillon responds that (1) the
grievance panel had no authority to transfer Dillon to another
position, and (2) since he prevailed in both his grievance
petition proceedings, this case is controlled by Zicca, which he
reads as holding that "[w]hen the agency loses a discharge case,
it must reinstate the person to the job that he previously held."
We agree with Dillon that the grievance panel had no
authority to transfer him to another position. See Jones v.
Carter, 234 Va. 621, 625-26, 363 S.E.2d 921, 924 (1988)
(grievance panel does not have authority to promote aggrieved
employee). And we think that if the employee is reinstated by
the panel, in the absence of evidence of justification for a
transfer to another position within the agency, the agency must
reinstate the person to his former position.
In this case, however, the evidence demonstrated Dillon's
unsatisfactory job performance in several important respects. In
1990, Dillon closed the shop for two and a half days without
authorization and was suspended for 10 days for that offense. In
1992, during a telephone conversation with one of his
supervisors, Dillon was told that the Department had no one who
could replace him for the two days when Dillon wanted to take
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leave and that the Department could not close down the shop
during that time. Dillon responded that he would not come to
work those two days and "you do what you have to do" and then
hung up the telephone. In 1990, Dillon had been warned that his
job performance was unsatisfactory because of inadequate
production records in the sign shop. Yet, as noted earlier in
this opinion, in 1991 and 1992, Dillon never checked the sales
records kept by inmate workers and thus permitted them to
substantially inflate the sales figures resulting in overpayments
to some of the inmate workers.
We conclude that this evidence amply justified the
Department's exercise of the management responsibilities reserved
to employers under former Code § 2.1-114.5:1(B) to reassign
Dillon within the Department to another position in the same pay
grade. Accordingly, we will reverse the judgment of the trial
court and enter a final order dismissing the petition.
Record No. 941729 - Reversed and final decree.
Record No. 941955 - Reversed and final judgment.
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