COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Hodges
Argued at Salem, Virginia
DEPARTMENT OF MENTAL HEALTH,
MENTAL RETARDATION AND
SUBSTANCE ABUSE SERVICES, OPINION BY
WESTERN STATE HOSPITAL JUDGE WILLIAM H. HODGES
APRIL 22, 2003
v. Record No. 2553-02-3
WALTER H. HORNER
FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON
Humes J. Franklin, Jr., Judge
Anthony P. Meredith, Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Elizabeth McClanahan, Chief Deputy Attorney
General; Judith W. Jagdmann, Deputy Attorney
General; Guy W. Horsley, Jr., Senior
Assistant Attorney General; Ondray T. Harris,
Assistant Attorney General, on briefs), for
appellant.
Tate C. Love (Black, Noland & Read, P.L.C.,
on brief), for appellee.
The Department of Mental Health, Mental Retardation and
Substance Abuse Services, Western State Hospital (DMH) appeals the
decisions of the circuit court denying its motion to dismiss
Walter H. Horner's (Horner) grievance hearing appeal and
reinstating him to his former position. DMH argues (1) Horner
failed to perfect his appeal to the circuit court, (2) the circuit
court misinterpreted Code § 2.2-3003(D), 1 (3) the circuit court
misapplied Code § 2.2-3004(D), (4) the court erred by finding the
Department of Employment Dispute Resolution (EDR) compliance
rulings were appealable, (5) the court erred by finding appellate
review was not precluded, (6) the court's decision renders DMH
management powerless to discipline its employees, (7) the court
erred by finding the first level respondent provided a remedy, and
(8) the court improperly allowed Horner to address and introduce
new materials into evidence in violation of its pre-hearing order.
Horner contends DMH failed to abide by the requirements of
the state grievance procedure and that an e-mail he transmitted to
the Inspector General did not violate Policies 6.05 and 6.10
concerning patient confidentiality.
We agree that the circuit court erred by finding DMH was
bound by the determination of the first level respondent.
Therefore, we reverse the circuit court's decision and remand for
the court to address Horner's other bases for challenging the
decisions of the hearing officer.
Background
Horner was an internist at DMH's Western State Hospital.
Horner's conduct was governed by the Department of Human
1
Formerly Code § 2.1-116.05(E). Effective in 2001, former
Code § 2.1-1 et seq. was recodified as Code § 2.2-100 et seq.
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Resource Management's (DHRM's) Standards of Conduct, DHRM
Policies 6.05 and 6.10, DMH's Departmental Instruction 201, and
the Grievance Procedure Manual. On May 15, 2001, pursuant to
the Standards of Conduct, Horner was issued three Group II
written notices and terminated for failure to follow a
supervisor's instructions and for failure to comply with
Policies 6.05 and 6.10. Dismissal is warranted on the
accumulation of two such notices. Horner contested the notices
under the statutory grievance procedure. The grievances were
qualified for a hearing, pursuant to the Commonwealth's
three-step grievance qualification process. See Code
§ 2.2-3004(D).
At the first level of management review, Horner's immediate
supervisor, Dr. Michael T. Clayton, stated he supported the
reversal of the notices and he concluded Horner should be
reinstated with back pay and benefits. However, in the
subsequent two levels of management review, management disagreed
with Clayton's decisions.
The matters then went before an EDR hearing officer, as the
next level of review. Following a two-day evidentiary hearing,
the hearing officer, in an August 20, 2001 written decision,
affirmed Horner's termination and two of the Group II notices.
Horner sought and obtained reconsideration by the hearing
officer, but the hearing officer affirmed his original decision.
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Horner appealed both decisions to EDR and DHRM. Horner then
appealed to the circuit court.
The court agreed with Horner's contention that the
statutory grievance procedure requires that DMH give effect to
Clayton's decisions and ordered Horner be reinstated.
Analysis
In administratively implementing the statutory grievance
procedure, pursuant to Code § 2.2-3003(A), 2 EDR produced the
"Grievance Procedure Manual" (GPM). In the GPM, EDR provided
for three levels of management review for the purpose of
resolving an employee's grievance short of elevating the matter
to a formal hearing. GPM § 2.1 and §§ 3.1 through 3.3. Under
the GPM procedure, the first of three potential "Management
Resolution Steps" is conducted by the "First-Step Respondent."
GPM § 3.1. The "First-Step Respondent" is the employee's
immediate supervisor. GPM § 9. The subsequent two steps are
conducted by an individual in a senior management position and
the agency head, respectively. GPM §§ 3.2, 3.3, and 9.
2
Code § 2.2-3000(A) provides: "As part of the
Commonwealth's program of employee relations management, the
Department of Employment Dispute Resolution shall develop a
grievance procedure that includes not more than three
successively higher grievance resolution steps and a formal
hearing as provided in this chapter."
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Code § 2.2-3003(D) provides, in pertinent part, that
"management shall review the grievance and respond to the merits
thereof. Each level of management review shall have the
authority to provide the employee with a remedy." The circuit
court found that Clayton, the first level respondent, provided
Horner with a remedy and that, therefore, DMH was precluded from
pursuing the matter to the next levels of management review.
Such an interpretation of the statute and the manual would
essentially allow an immediate, lower-level supervisor to make a
final, conclusive determination and would provide the
lower-level supervisor with more authority on disciplinary
matters than an agency director.
The stated policy of the State Grievance Procedure is to
"afford an immediate and fair method for the resolution of
employment disputes . . . ." Code § 2.2-3000 (emphasis added).
A system which provides such disparate remedies and which allows
only the employee to proceed to subsequent resolution steps
would hardly be "fair." More importantly, such an
interpretation of the statute and the procedure is absurd and
irrational.
The Supreme Court of Virginia has consistently held that
statutes "must be given a rational interpretation consistent
with [their] purposes, and not one which will substantially
defeat [their] objectives." City of Chesapeake v. Gardner
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Enterprises, 253 Va. 243, 247, 482 S.E.2d 812, 815 (1997)
(citing Mayor v. Industrial Dev. Auth., 221 Va. 865, 869, 275
S.E.2d 888, 890 (1981)). Furthermore, "[a] provision of a
section of a statute ought not to receive a mere literal
interpretation, when it would contravene the intention of the
Legislature apparent from the other sections and provisions
thereof, but the words are to be expanded or qualified to
effectuate the intention." Tabb v. Commonwealth, 98 Va. 47,
56-57, 34 S.E. 946, 949 (1900). Allowing the lower-level first
respondent more authority than the agency head in determining
the proper disciplinary actions for employees clearly
contravenes the stated and apparent intention of the grievance
procedure. See Code § 2.2-3000 et. seq. Therefore, we reverse
the circuit court's decision. We remand the case for the
circuit court to determine the merits of Horner's additional
claims which it initially refused to address.
Reversed and remanded.
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