COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Beales and Powell
Argued by teleconference
RHONDA S. EARMAN
MEMORANDUM OPINION * BY
v. Record No. 0292-10-2 JUDGE CLEO E. POWELL
NOVEMBER 2, 2010
VIRGINIA DEPARTMENT OF VETERANS SERVICES
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
(Rhonda S. Earman, pro se, on briefs). Appellant submitting on
briefs. 1
Guy W. Horsley, Jr., Special Assistant Attorney General
(Kenneth T. Cuccinelli, II, Attorney General; Wesley G. Russell,
Jr., Deputy Attorney General, on brief), for appellee.
Rhonda S. Earman (“Earman”) was employed by the Virginia Department of Veterans
Services (“DVS”) as the administrative assistant to the Commissioner of Veterans Services. In
October of 2008, Earman was laid off when her position was eliminated due to state budget cuts.
Pursuant to the State Grievance Procedure, Code § 2.2-3004, Earman requested and received a
grievance hearing before an administrative hearing officer. The hearing officer made findings of
fact and determined that DVS had discriminated against Earman by misapplying the layoff
policy and ordered DVS to reapply the layoff process. DVS appealed the hearing officer’s
interpretation of the layoff policy to the Director of the Department of Human Resource
Management (“DHRM”), who determined that the hearing officer had misinterpreted the layoff
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant waived the opportunity to present oral argument.
policy and remanded the matter back to the hearing officer. On remand, the hearing officer
found no discrimination on the part of DVS and vacated his earlier ruling.
Pursuant to Code § 2.2-3006(B), Earman sought judicial review of the hearing officer’s
modified decision. The circuit court affirmed the decision of the hearing officer. Earman
appealed that decision to this Court, contending that the hearing officer and the circuit court
erred in failing to find that (1) DVS used the budget cuts as a pretext for retaliation; (2) DVS
violated state and internal agency retaliation policies; (3) DVS misapplied the state layoff policy;
(4) her evidence was sufficient to support her discrimination claim; (5) DVS failed to fulfill its
obligations to Earman after laying her off; (6) DHRM’s interpretation of the state layoff policy
was an attempt to cover for DVS’s retaliation and avoid liability for the Commonwealth; and
(7) DHRM’s failure to timely issue its administrative review of the hearing officer’s initial
finding constituted a procedural default. For the reasons that follow, we affirm the decision of the
circuit court.
BACKGROUND
In 2006 and 2007, Earman filed a number of complaints about DVS and some of its
employees with the State Office of the Internal Auditor using the Fraud, Waste, and Abuse
Hotline. An internal auditor substantiated some of Earman’s complaints, but the majority were
found to be inconclusive or unsubstantiated.
On July 4, 2008, Earman filed an employee grievance alleging retaliation, ongoing pay
discrimination, and misapplication of policy relating to pay and classification issues. Earman
petitioned the agency head to qualify her grievance for a hearing. The agency head declined to
do so. Earman then petitioned the Director of the Department of Employment Dispute
Resolution (“EDR”) to qualify her grievance for a hearing. The EDR Director also declined.
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On October 14, 2008, Earman was laid off in connection with DVS’s efforts to meet
budget reduction goals. She timely filed a second grievance alleging that her selection for the
layoff was retaliatory and that DVS misapplied the layoff policy. Earman again petitioned the
agency head and the Director of EDR to qualify her second grievance for a hearing. Both
requests were denied. Earman appealed the decision to the Circuit Court of the City of
Richmond, which held that the second grievance qualified for a hearing because Earman had
raised a sufficient question of retaliation and/or misapplication of layoff policy.
On June 15, 2009, a hearing officer heard testimony and argument from both Earman and
DVS. The hearing officer issued a ruling on June 18, 2009, finding:
While I find [DVS] acted within its discretion in identifying
[Earman’s] central office administrative position for layoff, and
that the decision is not shown to be tainted by retaliation, I also
find that [DVS’s] actions, or inactions, fail to comply with the
layoff policy and the obvious intent of the layoff policy.
* * * * * * *
I do not find that the decision to eliminate [Earman’s] position was
pretextual. [DVS] has explained that [Earman’s] position was
identified for elimination because it did not involve direct services
to veterans. However, [DVS] has failed to explain adequately why
or how it failed to follow DHRM Policy 1.30. 2 Based on the
totality of the evidence, the only explanation for [DVS’s] apparent
rigidness in not following DHRM Policy 1.30 appears directed to
[Earman] as an individual, rather than the occupant of the position
eliminated by layoff. At this point, the layoff process became
tainted as it pertains to consideration of options for [Earman]
following the elimination of her full-time position.
The hearing officer further explained that DVS failed to follow the layoff policy because
it did not properly identify all the valid vacancies which could have been offered to Earman as
placement options. Specifically, the hearing officer found that DVS failed to follow DHRM
2
According to the DHRM Policies and Procedures Manual, Policy Number 1.30
describes the procedures a state agency must follow in performing layoffs.
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Policy 1.30 by failing to determine whether internal placement options were available and by not
considering a reduction of Earman’s position to part-time in lieu of using a temporary employee.
The hearing officer concluded that,
[S]ince the layoff policy was not followed, either by letter or spirit,
as it pertained to at least considering offering [Earman] prescribed
alternatives to layoff, and since [DVS] either could not or did not
provide any legitimate explanation for the failure, the reasonable
inference is that [DVS] retaliated against [Earman].
The hearing officer ordered DVS to reapply the layoff process by identifying all vacant
positions that could have been used as placement options, including part-time or wage positions,
or by reducing Earman’s full-time position to part-time. The hearing officer also ruled that, in
the event a valid position was found and Earman accepted such position, she could recover back
pay and her attorney’s fees, as well as maintaining her seniority and benefits.
On July 1, 2009, pursuant to Code § 2.2-3005.1(A), 3 DVS appealed the award of
attorney’s fees to the Director of EDR. On September 4, 2009, the Director of EDR held that
attorney’s fees were allowable in the event Earman was reinstated.
3
Code § 2.2-3005.1(A) states:
For those issues qualified for a hearing, the hearing officer may
order appropriate remedies. Relief may include (i) reinstatement,
(ii) back pay, (iii) full reinstatement of fringe benefits and seniority
rights, (iv) mitigation or reduction of the agency disciplinary
action, or (v) any combination of these remedies. In grievances
challenging discharge, if the hearing officer finds that the
employee has substantially prevailed on the merits of the
grievance, the employee shall be entitled to recover reasonable
attorneys’ fees, unless special circumstances would make an award
unjust. All awards of relief, including attorneys’ fees, by a hearing
officer must be in accordance with rules established by the
Department of Employment Dispute Resolution.
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On the same day DVS appealed the award of attorney’s fees, DVS also appealed the
hearing officer’s interpretation of Policy 1.30 to DHRM, pursuant to Code § 2.2-3006(A). 4 On
October 1, 2009, DHRM held that the hearing officer’s interpretation of Policy 1.30 was
incorrect, stating:
The Department of Human Resource Management respectfully
disagrees with the hearing officer that DVS officials misapplied
DHRM Policy 1.30 as related to finding placement options for
[Earman]. This disagreement is based on the evidence that the
Human Resource Manager in her testimony indicated that she had
researched available options and that the two positions identified
by [Earman] – a temporary position and a wage position – were
filled and, therefore, not valid vacancies. The Layoff Policy does
not give [Earman] displacement rights to those positions.
DHRM further held that Policy 1.30 “does not obligate an agency to consider reduction
to part-time as a pre-layoff consideration.”
The matter was remanded to the hearing officer for revision consistent with the DHRM’s
interpretation of the layoff policy. On October 6, 2009, the hearing officer modified the earlier
ruling, stating:
The relief originally provided to [Earman] was based on the
hearing officer’s interpretation of DHRM policy. Since DHRM
reversed the hearing officer’s interpretation of policy, and as
required by DHRM’s remand decision reversing the hearing
officer’s interpretation of Policy 1.30, the hearing officer hereby
rescinds and vacates the relief granted to [Earman] in the June 18,
2009, original grievance decision . . . .
4
Code § 2.2-3006(A) states:
Upon the request of a party to a grievance hearing for an
administrative review of the hearing decision, the Director of the
Department of Human Resource Management shall determine,
within 60 days of receipt of such request, whether the hearing
decision is consistent with policy.
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Pursuant to Code § 2.2-3006(B), Earman appealed the matter to the circuit court. The circuit
court affirmed the October 6, 2009 decision of the hearing officer.
Earman timely appeals to this Court.
ANALYSIS
Code § 2.2-3006(B) states, in relevant part:
Within 30 days of a final decision, a party may appeal on the
grounds that the determination is contradictory to law by filing a
notice of appeal with the clerk of the circuit court in the
jurisdiction in which the grievance arose.
(Emphasis added).
We have previously held that the review of state employee grievances required a
“tripartite review procedure.” Virginia Dep’t of State Police v. Barton, 39 Va. App. 439, 445,
573 S.E.2d 319, 322 (2002). Under this review procedure, “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.” Id. “[N]either of these
determinations is subject to judicial review . . . .” Id. 5 Rather, “[t]he only grounds of appeal of
the hearing officer’s decision [to the circuit court] is ‘that the determination is contradictory to
law.’” Id.
Furthermore, the burden is on the appealing party to “specify how that decision [was]
‘contradictory’ to law and what ‘law’ is thereby being contradicted.” Id. at 445-46, 573 S.E.2d
at 322. Specifically, the appealing party must “identify [a] constitutional provision, statute,
regulation or judicial decision which the [hearing officer’s] decision contradicted.” Tatum v.
5
We express no opinion on whether the Barton standard of review is applicable where
there is no basis for the hearing officer’s factual findings (i.e., there are no facts to support the
hearing officer’s factual determination or where the hearing officer’s factual determination is
plainly wrong).
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Virginia Dept. of Agric., 41 Va. App. 110, 122, 582 S.E.2d 452, 458 (2003) (alterations in
original) (quoting Barton, 39 Va. App. at 446, 573 S.E.2d at 323).
In her brief, Earman raises seven questions presented. However, six of her questions
presented involve either factual determinations made by the hearing officer or policy determinations
made by the DHRM, and are therefore not subject to judicial review. In her first question, Earman
argues that the facts demonstrate DVS’s retaliatory motives in deciding to eliminate her position
and lay her off. Such a determination is factual in nature and therefore not subject to judicial
review. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981) (stating that if
“the presumption raised by the [plaintiff’s] prima facie case is rebutted . . . the factual inquiry
proceeds to a new level of specificity” (emphasis added)). Her second question involves the
discriminatory nature of the layoff, which is also a factual determination. In her third question,
Earman contends that DVS misapplied the layoff policy. As this involves a determination of
whether the hearing officer’s decision is consistent with policy, it is not subject to judicial
review. Earman’s fourth question pertains to the sufficiency of the evidence presented, a
patently factual determination. The fifth question concerns whether DVS failed to fulfill its
obligations to Earman after laying her off, which is also a factual determination. Finally, in her
sixth question, Earman attacks DHRM’s determination that the hearing officer’s interpretation of
the layoff policy was incorrect. This necessarily involves a determination of whether the hearing
officer’s decision is consistent with policy, and is therefore not subject to judicial review.
In her final question, Earman argues that DHRM’s failure to issue a decision on DVS’s
request for administrative review within the 60-day time limit required under Code
§ 2.2-3006(A) constitutes a procedural default on the part of DVS. The record demonstrates that
DHRM issued its decision 91 days after DVS made its request for administrative review. As a
result, Earman contends that DHRM’s interpretation of the layoff policy is void and, therefore,
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so is the directive requiring the hearing officer to revise his decision. She further contends that,
because the delayed decision ultimately favored DVS, she was prejudiced by the delay.
Virginia has long recognized that “the use of the word ‘shall’ in a statute requiring action
by a public official, is directory and not mandatory unless the statute manifests a contrary
intent.” Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638 (1994). Although the
language is directory, “failure to adhere to statutory time requirements may result in dismissal if
due process concerns are not met.” Tran v. Board of Zoning Appeals, 260 Va. 654, 658, 536
S.E.2d 913, 916 (2000). An assessment of whether an individual has “suffered prejudice
constituting a denial of due process must be made on a case-by-case basis.” Commonwealth v.
Wilks, 260 Va. 194, 201, 530 S.E.2d 665, 668 (2000). Further, the prejudice must be “as a result
of the delay.” Id.
Earman offers no evidence that she was prejudiced as a result of the delay. Rather, she
makes the conclusory argument that, because the delayed decision favored DVS, she was
prejudiced by the delay. We find no merit to this argument. Code § 2.2-3006(A) contains no
“prohibitory or limiting language that prevents” DHRM from ruling after the expiration of 60
days. Jamborsky, 247 Va. at 511, 442 S.E.2d at 638. As such, a delay would not constitute a
procedural default on the part of DVS. There is no evidence that Earman would have prevailed
but for the delay; therefore it cannot be said that she was prejudiced as a result of the delay.
CONCLUSION
For the foregoing reasons, we affirm the decision of the circuit court.
Affirmed.
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