COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Haley
Argued at Salem, Virginia
VIRGINIA POLYTECHNIC INSTITUTE
AND STATE UNIVERSITY
OPINION BY
v. Record No. 1204-07-3 JUDGE ROBERT J. HUMPHREYS
APRIL 15, 2008
MAYNARD QUESENBERRY
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
Stephen F. Capaldo, Associate University Legal Counsel (Robert F.
McDonnell, Attorney General; Kay K. Heidbreder, University Legal
Counsel; Mary Beth Nash, Associate University Legal Counsel, on
briefs), for appellant.
Jonathan Rogers (Jonathan Rogers, P.C., on brief), for appellee.
Virginia Polytechnic Institute and State University (“Virginia Tech”) appeals the
judgment of the Circuit Court of Montgomery County (“circuit court”), which reversed the
decision of an administrative hearing officer who upheld Virginia Tech’s termination of an
employee for sexual harassment. Virginia Tech asks us to reverse the judgment of the circuit
court and reinstate the hearing officer’s decision, arguing that the hearing officer’s decision was
not contradictory to law. Virginia Tech also argues that the hearing officer erred in not admitting
evidence of the employee’s prior misconduct. For the reasons that follow, we affirm the
judgment of the circuit court. We do not address Virginia Tech’s second question presented, as
it is procedurally defaulted.
BACKGROUND
A. Quesenberry’s Encounter with Rebecca Hampton
The hearing officer found the following facts in his decision. Maynard Quesenberry
(“Quesenberry”) was employed as a business manager at Virginia Tech responsible for
overseeing the university mail system. Quesenberry received progressive promotions during his
career at Virginia Tech, and in 2004, received special recognition from the university for his
suggestions to improve the university’s operations. At the time Virginia Tech terminated his
employment in March 2006, Quesenberry had worked for Virginia Tech for approximately
twenty-nine years.
Quesenberry also served as a volunteer coach and board member of a nearby boxing club,
which is a non-profit organization intended to assist disadvantaged youth by helping them
develop self-esteem and self-discipline. In order to raise funds for the boxing club, the board
members discussed the possibility of producing a boxing calendar to sell to local businesses.
The proposed calendar would feature photos of attractive young women posing in the context of
boxing activities.
Emmet Long (“Long”) worked for Virginia Tech as the residential mail supervisor, and
reported directly to Quesenberry. Although Long was not affiliated with the boxing club, he
became interested in the production of the calendar, and asked several female students if they
wished to pose for the calendar. Long later stopped asking students to pose for the calendar at
Quesenberry’s request.
On December 9, 2005, Quesenberry and Long were leaving the university mail room
when Long told Quesenberry that he wanted to introduce him to an acquaintance of his, Rebecca
Hampton (“Hampton”), and indicated that she might be interested in posing for the calendar.
Hampton was a twenty-year-old female student at Virginia Tech, and an employee of We Care, a
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student-run organization whose purpose was to assemble and distribute care packages around the
university. Although Hampton’s superiors included full-time Virginia Tech employees,
Quesenberry did not supervise Hampton.
Quesenberry and Long entered Hampton’s office, and Long introduced Quesenberry as
his supervisor. Long indicated to Quesenberry that Hampton might be interested in posing for
the calendar. Quesenberry then told Hampton he was involved in the boxing club and that he
was looking for models to pose for his calendar. Quesenberry asked Hampton if she would be
interested in posing for the calendar, wearing either a bathing suit or “short shorts,” and assured
Hampton that the photos would be done in “good taste.” During the conversation, Hampton
grabbed a piece of candy, and Quesenberry admonished her not to eat it, stating “if you continue
eating that, you will look like a little refrigerator with your head on top.” The total conversation
lasted between eight and fifteen minutes.
Hampton felt that Quesenberry’s comments toward her were inappropriate, and she also
felt “objectified.” Hampton reported the incident to her supervisor, who in turn reported it to
officials higher in the university hierarchy. Virginia Tech then launched a formal investigation
into the incident. After her interaction with Quesenberry, Hampton began taking a more
circuitous route to her office to avoid any further contact with Quesenberry or Long. Hampton
also began closing and locking her door with more frequency when she came to her office.
Neither Quesenberry nor Long had any further contact with Hampton after the incident.
B. Procedural History
Quesenberry’s supervisor issued him a “Group III” written notice of discipline for the
incident with Hampton, and terminated his employment with Virginia Tech, based on
Quesenberry’s violation of Virginia Tech Policy No. 1025, an anti-sexual harassment and
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discrimination policy. 1 Quesenberry filed a grievance, and, after exhausting internal remedies,
requested a hearing. In addition to the factual findings stated above, the hearing officer found
that:
As a result of her conversation with [Quesenberry], [Hampton]
regularly began closing and locking her office door and
withdrawing from communication with other employees working
in offices next to her office. By withdrawing into her office,
[Hampton]’s work performance and participation in University
activities was diminished. This interference was unreasonable
because the degree to which [Hampton] openly communicated
with other employees was significantly reduced. In particular,
[Hampton] changed from a very extroverted outgoing employee to
a secluded introverted employee. This change materially affected
her and the others around her.
The hearing officer additionally found that, all things considered, Hampton “overreacted”
to Quesenberry’s conduct. The hearing officer based his finding partially on the fact that
Hampton did not believe the calendar would be in “good taste” despite clear evidence that
Quesenberry intended for the calendar to be tasteful.
Nevertheless, the hearing officer concluded that Quesenberry’s conduct violated Virginia
Tech Policy No. 1025, because “[b]y any objective standard, it was inappropriate for a female to
be asked to pose wearing short shorts or a bathing suit for a calendar unrelated to the
University’s mission.” The hearing officer continued to state that “[a]lthough [Quesenberry]’s
behavior was not sexual harassment in the legal sense because it was neither severe nor
pervasive, his actions could have been a piece of the foundation of a sexual hostile work
environment claim.” The hearing officer then found that Quesenberry’s conduct amounted only
to a “Group II” violation of university policy, but upheld Quesenberry’s termination because
1
A “Group III” offense is an act or behavior “of such a serious nature that a first
occurrence should normally warrant removal.” Va. Department of Human Resource
Management Policies and Procedures Manual § 1.60(V)(B)(3) (setting forth standards of conduct
for state employees).
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Quesenberry had a previous “Group II” violation on his disciplinary record. 2 Quesenberry
timely appealed to the circuit court.
By order dated April 24, 2007, the circuit court reversed the hearing officer’s decision as
contrary to law, concluding that under “any objective standard of reasonableness,
[Quesenberry]’s conduct, as complained of, was not sexual harassment.” The circuit court
ordered Virginia Tech to reinstate Quesenberry to his position, compensate Quesenberry for all
accrued pay since the date of his termination, and reinstate all of Quesenberry’s benefits as if
there had been no break in service. Virginia Tech now appeals to this Court.
STANDARD OF REVIEW
In a state employee’s grievance hearing, “[t]he hearing officer’s decision ‘shall (i) be in
writing, (ii) contain findings of fact as to the material issues in the case and the basis for those
findings, and (iii) be final and binding if consistent with law and policy.’” Tatum v. Va. Dep’t of
Agric. & Consumer Servs., 41 Va. App. 110, 121, 582 S.E.2d 452, 458 (2003) (quoting Code
§ 2.2-3005(D)). “[The applicable] statutes clearly provide the hearing officer is to act as fact
finder and . . . [its] determination[] is [not] subject to judicial review[.]” Id. at 121-22, 582
S.E.2d at 458 (quoting Virginia Dep’t of State Police v. Barton, 39 Va. App. 439, 445, 573
S.E.2d 319, 322 (2002)). As such, the factual findings of a hearing officer are binding upon an
appellate court. See id. Thus, “the only grounds of appeal of the hearing officer’s decision is
‘that the determination is contradictory to law.’” Id. (quoting former Code § 2.1-116.07:1(B)
(recodified as amended at § 2.2-3006(B))). On appeal, Quesenberry has the burden of
“identify[ing] [a] constitutional provision, statute, regulation, or judicial decision which the
[hearing officer’s] decision contradicts.” Barton, 39 Va. App. at 446, 573 S.E.2d at 323. An
2
“‘Group II’ offenses include acts and behavior which are more severe in nature and are
such that an additional Group II offense should normally warrant removal.” Va. Department of
Human Resource Management Policies and Procedures Manual § 1.60(V)(B)(2).
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appellate court reviews issues of law de novo. Bristol v. Commonwealth, 272 Va. 568, 573, 636
S.E.2d 460, 463 (2006).
ANALYSIS
I. Whether Quesenberry’s Conduct Constituted Sexual Harrassment
Virginia Tech first argues that the hearing officer’s decision should be reinstated because
the hearing officer correctly found that Quesenberry’s conduct violated Virginia Tech Policy No.
1025. We disagree.
As stated above, we review a hearing officer’s decision only to determine whether it is
“contradictory to law.” Barton, 39 Va. App. at 445, 573 S.E.2d at 322. “‘Law’ is the ‘aggregate
of legislation, judicial precedents, and accepted legal principles.’” Id. at 446, 573 S.E.2d at 323
(quoting Black’s Law Dictionary 889 (7th ed. 1999)).
Virginia Tech notes that Policy No. 1025, its official university policy prohibiting sexual
harassment among university employees, comports with federal anti-discrimination law, namely
Title VII of the Civil Rights Act of 1964. Furthermore, Policy No. 1025’s definitions of sexual
harassment are taken directly from 29 C.F.R. 1604.11(a), the federal regulation defining sexual
harassment as it pertains to Title VII. 3 As this is a case of first impression in Virginia, and
3
In oral argument, Virginia Tech argued that reference to federal cases construing Title
VII should not be considered by us because “[the policy] is Virginia Tech’s policy and not a
Title VII case and Virginia Tech can interpret [its policy] any way it wants.” However, we note
that Code § 2.2-3900, the Virginia Human Rights Act, states that:
It is the policy of the Commonwealth to: [] [s]afeguard all
individuals within the Commonwealth from unlawful
discrimination because of race, color, religion, national origin, sex,
pregnancy, childbirth or related medical conditions, age, marital
status, or disability, . . . in employment[.]
Furthermore, Code § 2.2-2639(D) states that: “[c]auses of action based upon the public
policies reflected in this article shall be exclusively limited to those actions, procedures and
remedies, if any, afforded by applicable federal or state civil rights statutes or local ordinances.”
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because Virginia Tech has patterned its sexual harassment policy on the provisions of Title VII,
we turn to judicial interpretations of Title VII and consider their persuasive merit in determining
whether the hearing officer’s decision that Quesenberry violated Virginia Tech Policy No. 1025
was contradictory to law.
“The concept of sexual harassment is designed to protect working women from the kind
of male attentions that can make the workplace hellish for women. . . . It is not designed to
purge the workplace of vulgarity.” Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.
1995). The United States Court of Appeals for the Seventh Circuit has recognized a “line that
separates the merely vulgar and mildly offensive from the deeply offensive and sexually
harassing.” Carr v. Allison Gas Turbine Div., 32 F.3d 1007, 1010 (7th Cir. 1994). “Conduct that
is not severe or pervasive enough to create an objectively hostile or abusive work environment –
an environment that a reasonable person would find hostile or abusive – is beyond Title VII’s
purview.” Harris v. Forklift Sys, Inc., 510 U.S. 17, 21 (1993). “Unlike other, more direct and
discrete unlawful employment practices, hostile work environments generally result only after an
accumulation of discrete instances of harassment.” Jordan v. Alternative Res. Corp., 458 F.3d
332, 339 (4th Cir. 2006).
In Doss v. Jamco, Inc., 254 Va. 362, 492 S.E.2d 441 (1997), the Supreme Court of
Virginia interpreted Code § 2.1-725(D), the predecessor to Code § 2.2-2639(D), to prohibit
causes of action for wrongful discharge from employment based upon the policies reflected in
the Virginia Human Rights Act (“VHRA”). Id. at 371, 492 S.E.2d at 446. While rejecting
causes of action arising from violations of the VHRA, the Court nonetheless recognized that the
VHRA is an expression of Virginia public policy and that the General Assembly had intended to
limit causes of action to those provided by federal or state civil rights statutes, such as Title VII.
See id. Therefore, we view Code § 2.2-2639(D) as evidence that the General Assembly
considered the public policies of Virginia as expressed in the VHRA to be analogous to those
expressed in Title VII. Moreover, since the definition of “sexual harassment” in Virginia Tech’s
Policy No. 1025 is taken almost verbatim from 29 C.F.R. 1604.11(a), the Federal Regulation
construing Title VII, we find it appropriate to consider Title VII jurisprudence as persuasive
precedent to assist us in interpreting Virginia Tech Policy No. 1025.
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In order to determine as a matter of law whether conduct falls within the purview of Title
VII, reviewing courts look to the totality of the circumstances. Harris, 510 U.S. at 23. The
applicable factors may include “the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Id.
Virginia Tech Policy No. 1025 defines sexual harassment as
unwelcome sexual advances, requests for sexual favors, and other
verbal, nonverbal, or physical conduct of a sexual nature when[]
. . . [s]uch conduct has the purpose or effect of unreasonably
interfering with an individual’s work . . . or creating an
intimidating, hostile, or offensive work or academic environment. 4
Thus, in order to discipline an employee for sexual harassment under this policy, the
evidence must establish that (1) the employee made unwelcome sexual advances, requests for
sexual favors, or other verbal or nonverbal conduct of a sexual nature towards a fellow
employee; and (2) that conduct either had the purpose or effect of unreasonably interfering with
an individual’s work or created an intimidating, hostile, or offensive work or academic
environment.
The first question we must answer is whether Quesenberry’s proposal could be
reasonably interpreted as a sexual advance, a request for a sexual favor, or other sexual conduct.
After considering all of the circumstances, and using an objective standard, we conclude that a
reasonable person could not consider Quesenberry’s proposal to be sexual in nature.
4
In defining sexual harassment as sexual “conduct [that] has the purpose or effect of
unreasonably interfering with an individual’s work[,]” Virginia Tech has elevated the final factor
mentioned in Harris to dispositive status. Therefore, Virginia Tech Policy No. 1025 requires less
egregious conduct for a finding of sexual harassment with regards to employee discipline than
what a plaintiff in a Title VII sexual harassment claim is required to prove. Nevertheless, we
find that even under the more relaxed standard contained in Virginia Tech’s policy, it is
appropriate to apply the totality of the circumstances test described in Harris to determine
whether Quesenberry’s conduct constituted sexual harassment.
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Quesenberry approached Hampton, who was not under his supervision, on one isolated
occasion and spoke to her for no more than fifteen minutes. He asked her if she would pose for a
fund-raising calendar in a bathing suit or “short shorts,” and assured her that the photos would be
done in “good taste.” He made no comments or gestures that objectively betrayed a sexual
intent, and did not ask her for a date or suggest any other personal social interaction. He did not
touch Hampton, nor did he make any other type of advance towards her. While a reasonable
person may have found Quesenberry’s proposal annoying and inappropriate, to say that an
isolated proposal to pose for photographs in a bathing suit or “short shorts” for publication in a
calendar necessarily contains veiled references to sex, strains credulity.
The holdings of federal courts addressing similar questions with regard to Title VII
bolster this analysis. In Baskerville, the male supervisor of a female employee frequently
referred to the employee as a “pretty girl,” and made grunting noises that sounded like “um um
um” when she wore a leather skirt to the office. 50 F.3d at 430. When she commented on how
hot his office was, he replied that it was “not [hot] until you stepped your foot in here.” When
the announcement “may I have your attention please” was broadcast over the public-address
system, he stopped at her desk and said, “You know what that means, don’t you? All pretty girls
run around naked.” Once, when she complained that his office was “smokey” from cigarette
smoke, he replied, “Oh really? Were we dancing, like in a nightclub?” During a period when
the supervisor was not living with his wife, he commented that it was “lonely in his hotel
room . . . and all he had for company was his pillow.” He then looked provocatively at his hand,
in a gesture suggesting masturbation. All of these incidents took place over a seven-month time
span. Id.
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The employee brought a Title VII sexual harassment claim against the company, and a
jury awarded her $25,000. Id. The Seventh Circuit reversed, holding that the evidence was
insufficient as a matter of law to support a Title VII claim. The court stated that
[i]t is no doubt distasteful to a sensitive woman to have such a silly
man as one’s boss, but only a woman of Victorian delicacy-a
woman mysteriously aloof from contemporary American popular
culture in all its sex-saturated vulgarity-would find [the
supervisor]’s patter substantially more distressing than the heat and
cigarette smoke of which the plaintiff does not complain.
Id. at 431. The court also stressed the infrequency of the conduct, noting that a “handful of
comments spread over months is unlikely to have so great an emotional impact as a concentrated
or incessant barrage.” Id.
In this case, Quesenberry’s comments to Hampton were even more innocuous than those
made in Baskerville. While Quesenberry asked Hampton if she would pose tastefully in a
bathing suit or “short shorts,” the supervisor in Baskerville implied that the plaintiff in that case
should “run around naked.” In Baskerville, the plaintiff’s supervisor used his hand to make
transparent references to masturbation, while Quesenberry made no such crude gestures. While
the plaintiff’s supervisor in Baskerville made comments clearly expressing a personal interest in
the plaintiff, Quesenberry’s proposal was more detached and impersonal. Finally, Quesenberry
only approached Hampton on one occasion, as opposed to numerous times over a seven-month
period, as did the plaintiff’s supervisor in Baskerville.
While a violation of Virginia Tech Policy No. 1025 for sexual harassment may require a
lower quanta of evidence than a sexual harassment claim under Title VII, we nonetheless agree
with the circuit court and conclude that Quesenberry’s conduct was insufficient as a matter of
law to support a violation of the policy.
Having concluded that Quesenberry’s proposal was not sexual, we need not address
whether the proposal had the purpose or effect of unreasonably interfering with Hampton’s work.
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Therefore, we hold that Quesenberry’s proposal, as a matter of law, did not fall within the ambit
of Policy No. 1025. Thus, the hearing officer’s decision was contrary to law, and we affirm the
judgment of the circuit court.
II. Evidence of Prior Misconduct
Virginia Tech also argues that the hearing officer erred in not admitting evidence of
Quesenberry’s prior misconduct during the hearing. Virginia Tech, however, cites no authority
or principles of law in support of its argument. “Statements unsupported by argument, authority,
or citations to the record do not merit appellate consideration.” Budnick v. Budnick, 42
Va. App. 823, 833, 595 S.E.2d 50, 55 (2004) (quoting Roberts v. Roberts, 41 Va. App. 513, 527,
586 S.E.2d 290, 297 (2003)); see Rule 5A:20(e) (requiring appellants to brief the “principles of
law, the argument, and the authorities relating to each question presented”). Because Virginia
Tech cites no authority in support of its argument, this question is procedurally defaulted, and we
will not address it.
CONCLUSION
For the reasons stated, we agree with the circuit court and hold that the hearing officer’s
decision regarding Quesenberry’s violation of Virginia Tech Policy No. 1025 was contradictory
to law. We refrain from addressing Virginia Tech’s second argument, as it is procedurally
defaulted. Accordingly, we affirm the judgment of the circuit court.
Affirmed.
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