Home / Fulltext Opinions / Supreme Court of Virginia / DEPARTMENT OF ENVIRONMENTAL QUALITY v. WRIGHT



September 18, 1998
Record No. 972436




G. O. Clemens, Judge Designate

Present: All the Justices

In conjunction with the Virginia Personnel Act, Code
?? 2.1-110 et seq., the General Assembly has
established a system for handling state employee complaints
arising in the workplace. ? 2.1-116.05. See Murray
v. Stokes, 237 Va. 653, 656-57, 378 S.E.2d 834, 836
(1989). Among other options, employees may bring their concerns
to upper management through a formal grievance procedure.
? 2.1-116.05(B).
As relevant to this dispute, the grievance process generally
permits an employee, first, to present a complaint to the
employee’s immediate supervisor by filing a written grievance on
a specified form. Id. at (D). The head of the agency for
which the employee works must determine whether the grievance
qualifies for a hearing. ? 2.1-116.06(D). If the agency
head rules the grievance does not qualify for a hearing, the
employee may request the Director of the Department of Employee
Relations Counselors (DERC), who has statutory authority to
establish the grievance procedure, ? 2.1-116.03(3), to
qualify the grievance for a hearing. ? 2.1-116.06(D). The
Director of DERC may refer issues arising from the complaint to a
hearing officer for adjudication. ? 2.1-116.07.
The next step in this process generates the issue in this appeal.
Code ? 2.1-116.07(D) provides that, after the hearing
officer’s decision, "[e]ither party may petition the circuit
court having jurisdiction in the locality in which the employee
is employed for an order requiring implementation of the hearing
officer’s decision." The statute also provides for an award
of attorney’s fees to either party. Here, we consider whether the
circuit court exceeded its statutory jurisdiction in awarding
certain relief to an employee.
The facts are not disputed. Appellee Steven B. Wright is an
employee of the Department of Environmental Quality (DEQ), an
agency of the Commonwealth of Virginia. In May 1995, he was
employed as a Waste Management Supervisor in DEQ’s regional
office in Roanoke. In connection with a "restructuring"
of DEQ that commenced in 1994 and was finally implemented in May
1995, the employee was transferred to a position labeled
"Environmental Engineer."
Objecting to the transfer, the employee initiated a grievance
under the state grievance procedure. On the grievance form, the
employee claimed his transfer was disciplinary and retaliatory,
as well as a misapplication of personnel policies, procedures,
rules, or regulations. The agency head determined the grievance
was not grievable under the Act.
The employee appealed to the Director of DERC, who ruled that
only one issue the employee raised qualified for a hearing, that
is, whether the employee’s "reassignment and
reclassification was disciplinary."
Following a May 1996 hearing, a hearing officer rendered a
written opinion dated June 14, 1996. He found that the
supervisory job "was taken from Mr. Wright in order to
create a position for a headquarters transfer." The hearing
officer noted that, "[a]t the time of transfer," a DEQ
employee "from the Richmond office" had
"threatened Mr. Wright with a layoff unless he took the new
position of Environmental Engineer, which position apparently
does not have management or supervisory responsibilities."
The hearing officer, finding the employee "very well
qualified for the job which he had previously held,"
determined that "the job created for Mr. Wright at the time
of his transfer . . . was a new job in the department
for which there was no job description or duties assigned at the
time of the transfer and in fact, there was no similar job in any
other region of the state."
The hearing officer concluded "that the basis of Mr.
Wright’s having been removed as the Waste Management Supervisor
was the result of the arbitrary action of" the Richmond DEQ
employee, and that "the Department then provided Mr.
Wright’s Supervisor’s job to headquarters’ people whose jobs were
being abolished as the result of the Department downsizing."
The hearing officer recommended "that Mr. Wright be
reinstated as the Waste Management Supervisor because of the
arbitrary action of [the DEQ employee], which was not related to
discipline problems."
In a letter to the hearing officer dated June 21, 1996, Phyllis
C. Katz, the Director of DERC, asked for "a clarification of
your decision," asserting the decision "is
ambiguous" on the issue "whether the grievant’s
reassignment and reclassification was disciplinary."
Elaborating, Katz explained:
"If you found that the reassignment was disciplinary and
such discipline was unwarranted, then you may order the agency to
assign the grievant his former duties, and the agency must
implement that decision. If, on the other hand, you found that
the grievant’s reassignment was not disciplinary, then you cannot
order the agency to take certain action. However, you may, based
on collateral findings of fact, recommend that the agency assign
the grievant his former duties, but the agency would not be
obligated to follow your recommendation."

In a letter to Katz dated June 24, 1996, the hearing officer
responded he had concluded that the employee’s transfer "was
not the result of disciplinary action" by the DEQ, and
"was not related to discipline problems." He further
wrote: "A collateral finding of facts is that the agency
arbitrarily reassigned Mr. Wright and it is my recommendation
that he be reassigned to his former position."
Next, the DEQ requested the Director of the Department of
Personnel and Training (DPT), who has final authority to
interpret personnel policies and authority to assure compliance
with such policies, Code ? 2.1-114.5(13), to rule whether
the hearing officer’s "recommendation" was consistent
with state policy. Responding, the DPT ruled "an agency is
not bound to act on a hearing officer’s decision if that decision
is only a recommendation. Therefore, DEQ has no obligation to
take further action." DEQ refused to proceed further on the
employee’s grievance, and this litigation ensued.
The employee filed a pleading labeled "Bill of
Complaint" against the Commonwealth, Department of
Environmental Quality. He noted that the hearing officer
recommended reinstatement to his former position and asserted
that the DEQ improperly had refused to implement the hearing
officer’s decision. Claiming the assignment to the new position
was a "functional demotion," the employee alleged that
the DEQ’s refusal to reinstate him "violates" Code
? 2.1-116.07(D) (either party may petition circuit court
"for an order requiring implementation of the hearing
officer’s decision"). The employee asked the court to
implement the hearing officer’s decision and to award him
attorney’s fees. In various responsive pleadings, the
Commonwealth asserted the circuit court had "no authority to
implement nonbinding recommendations made by hearing
Following two hearings, during which many documents relating to
the grievance were submitted by the parties, the trial court
decided in favor of the employee on cross motions for summary
judgment. In an August 1997 order, the court found that the
hearing officer had ruled in favor of the employee, and not
against him, "as suggested by defendant in argument,"
and that the "grievance procedures established by the
Commonwealth are sufficiently broad to permit the relief sought
by the plaintiff." The court then ordered that the
Commonwealth "forthwith reinstate" the employee
"to his former position as Waste Management
Supervisor." Following another hearing, the trial court, in
an October 1997 order, awarded the employee attorney’s fees of
$5,500 plus costs. The Commonwealth appeals both orders.
Simply stated, this is a case in which the trial court exceeded
the authority the General Assembly granted to circuit courts in
Code ? 2.1-116.07(D). Under the statute, an employee may
petition the appropriate circuit court "for an order
requiring implementation of the hearing officer’s decision."
Thus, a circuit court’s authority, according to the statute, is
limited to the act of implementing, or refusing to implement, the
hearing officer’s ruling. A circuit court lacks authority to
consider the grievance de novo, to modify the
hearing officer’s decision, to substitute the court’s view of the
facts for those of the hearing officer, or to invoke its broad
equitable powers to arrive at a decision that the court may think
is fair; the court may only "implement."
The verb "implement" means "to carry out." Webster’s
Third New International Dictionary
1134 (1971). In the
present case, there was nothing in the hearing officer’s decision
to carry out; the officer ordered no relief. Ruling against the
employee on the only issue properly before him, the hearing
officer explicitly determined that the employee’s reassignment
"was not the result of disciplinary action" by the DEQ,
and "was not related to discipline problems."
However, the hearing officer made the "recommendation,"
not an order, that the employee be reassigned to his former
position. Then, the circuit court, purportedly
"implementing" the hearing officer’s decision, issued
an order that the hearing officer did not make; the court
directed the Commonwealth to "forthwith reinstate" the
employee to his former position. This was error. The hearing
officer’s "recommendation," while included within his
written opinion, was not a "decision" within the
meaning of ? 2.1-116.07(D) allowing implementation "of
the hearing officer’s decision."
This Court’s ruling in Angle v. Overton, 235 Va.
103, 365 S.E.2d 758 (1988), heavily relied upon by the employee,
is not controlling. Angle was "decided substantially
in [the employee's] favor" by a grievance panel. Id.
at 104, 365 S.E.2d at 758. There, we concluded the grievance
panel’s decision, which used the word "recommends,"
actually was "couched in mandatory, not discretionary,
language." Id. at 106, 365 S.E.2d at 760. We said
that the panel’s decision was binding and that it commanded the
employer to act to implement it. Here, in contrast, the hearing
officer’s decision was not in the employee’s favor. As
supplemented by his June 1996 response to Katz, the hearing
officer clearly decided in favor of the Commonwealth on the
discipline issue and collaterally made a plain recommendation of
reassignment that was not binding on the Commonwealth.
Accordingly, because the trial court erred in deciding the merits
of the controversy, we will reverse the August 1997 order. Our
action thus nullifies the award of attorney’s fees to the
employee, so we will also reverse the October 1997 order.
Finally, we will dismiss the bill of complaint.
Reversed and dismissed.

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