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Prison guard’s termination for fraternizing upheld

Where the Virginia Department of Corrections discharged appellee corrections officer after determining she fraternized with a former prisoner, the circuit court incorrectly reversed the VDOC and awarded her $17,000 in attorney fees.


Montgomery, the appellee, had worked as a corrections officer for 20 years with no history of disciplinary actions when the VDOC discharged her for violating a fraternization policy.

Montgomery’s daughter established a Facebook account for her. Montgomery and her family used the account primarily for business related to the family farm. The entire family had access to the account. VDOC discovered that a former prisoner, Gunning, who was on probation, was listed as a friend on Montgomery’s Facebook account.

Montgomery knew Gunning because he had been incarcerated at the unit where she worked. Gunning had posted on his Facebook account that he had passed a urine screen, was getting back to work and felt good about his prospects. There was a “like” reaction from Montgomery’s account.

During a VDOC investigation, Montgomery admitted that she knew Gunning was incarcerated where she worked but did not know he was still on probation. She stated that she was not sure if she or her daughter accepted Gunning’s friend request or if the friend request came from her account to Gunning.

The VDOC then terminated Montgomery for violating the fraternization policy. A hearing officer upheld the termination. Montgomery’s administrative appeal was unsuccessful.

On appeal, the circuit court noted that the hearing officer failed to consider mitigating evidence. The court also criticized the officer for determining that Montgomery, rather than her daughter, had “liked” Gunning’s post, stating that this conclusion was “contrary to the weight of [the hearing officer’s] factual findings.” The circuit court also ruled that the hearing officer’s “blanket deference” to the VDOC’s decision demonstrated that “the officer has failed to comply with his statutory duties.”

The court reversed the termination and awarded Montgomery $17,000 in attorney’s fees.

We reverse the circuit court and reinstate the termination.


“[T]he hearing officer complied with the duty to receive and consider evidence in mitigation of the fraternization offense. The circuit court’s finding that although the hearing officer received the evidence, it did not comply with its duty to consider the evidence, is misguided.

“The hearing officer received evidence that Montgomery served as a loyal employee during her twenty years as a corrections officer. The hearing officer’s decision clearly referenced evidence of Montgomery’s positive job performance history, stating, ‘[Montgomery] received an Exceeds Contributor rating on a recent performance evaluation.’

“Because the hearing officer clearly received and referenced mitigating evidence, it considered such evidence. However, in finding no mitigating circumstances, the hearing officer presumably did not find such evidence convincing enough to decrease the level of discipline. …

“The circuit court properly noted that the hearing officer engaged in improper burden shifting. … VDOC had the burden of proof by a preponderance of the evidence to persuade the hearing officer that Montgomery engaged in misconduct.

“The hearing officer improperly shifted this burden by categorizing Montgomery’s argument that her daughter may have accepted Gunning’s friend request and liked his post as an ‘affirmative defense’ and noted proving her Daughter was the one who connected with the Probationer.

“However, given the statutory limitations on judicial review of agency policies and employment decisions in such cases, the hearing officer’s improper burden shifting in this case amounts to harmless error. Even viewing the record utilizing the correct burden, VDOC presented sufficient uncontradicted evidence to satisfy the preponderance of the evidence standard.

“VDOC presented circumstantial evidence from which the hearing officer as factfinder could reasonably infer that Montgomery engaged in conduct that violated VDOC’s policy prohibiting contact with former inmates by showing that her profile was linked to, and communicated with, Gunning’s profile, and Montgomery did not deny engaging in the prohibited conduct.

“Montgomery only stated in her defense that she did not remember liking the post and that she was unsure whether she had accepted Gunning’s friend request.”

The decision to reinstate Montgomery and the attorney’s fee award is reversed.

Virginia Dep’t of Corrections v. Montgomery, Record No. 1415-19-3, March 3, 2020. CAV (Humphreys) from Augusta Cir. Ct. (Goodwin). W. Ryan Waddell for appellant, Shelly R. James for appellee. VLW 020-7-038, 10 pp. Unpublished.

VLW 020-7-038