Antonio Passaro, Jr. v. Virginia Department of State Police

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and O’Brien
PUBLISHED
Argued at Norfolk, Virginia
ANTONIO PASSARO, JR.
OPINION BY
v. Record No. 0328-16-1 JUDGE RANDOLPH A. BEALES
FEBRUARY 21, 2017
VIRGINIA DEPARTMENT OF STATE POLICE
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Frederick B. Lowe, Judge Designate
Kevin E. Martingayle (Bischoff Martingayle, P.C., on briefs), for
appellant.
Sydney E. Rab, Senior Assistant Attorney General (Mark R. Herring,
Attorney General; Cynthia E. Hudson, Chief Deputy Attorney
General; Rhodes B. Ritenour, Deputy Attorney General, Civil
Division, on brief), for appellee.
Antonio Passaro, Jr. (“Passaro”) challenges the judgment of the circuit court. The circuit
court, sitting as an appellate court, affirmed the decision of the hearing officer in Passaro’s
employee grievance proceeding against his former employer, the Virginia Department of State
Police (“VDSP”). Passaro contends that the circuit court (1) erred in finding that the decision of
the hearing officer was supported by the record; (2) erred in denying Passaro’s motion for
reconsideration; (3) erred in “upholding the hearing officer’s reliance on an expired ‘Group II
Written Notice’ as part of the disciplinary record used to justify termination of Passaro”;
(4) erred in “upholding the hearing officer’s original decision that contradicted law and policy by
failing to acknowledge and act upon unrebutted evidence of unlawful retaliation and abusive
behavior”; (5) erred in “upholding the hearing officer’s original decision that contradicted law
and policy by failing to acknowledge [VDSP’s] violations of General Order ADM 6.00(16)”
regarding review of transfer requests; and (6) erred in “failing to award relief to Passaro based
upon [VDSP’s] repeated unlawful refusal to comply with mediation provisions set forth in Code
§ 2.2-3000.” For the following reasons, we affirm the decision of the circuit court.
I. BACKGROUND
Passaro was employed by VDSP for approximately fifteen years. In October 2008,
Passaro began working in the High Tech Crimes Unit. The High Tech Crimes Unit investigates
potential computer fraud, computer trespass, computer invasion of privacy, and theft of computer
services, among other crimes. Relevant to this appeal, Passaro also investigated online child
exploitation cases including the possession, manufacture, and distribution of child pornography.
On July 28, 2010, Passaro received a Group II Written Notice1 for failure to follow established
written policy. Beginning in September 2010, Passaro began reporting to First Sergeant Robert
Holland. First Sergeant Holland began to observe that Passaro was having difficulty processing
his caseload. On March 22, 2011, First Sergeant Holland counseled Passaro about his “heavy
reliance” on Federal Agent Paul Wolpert of Immigration and Customs Enforcement (“ICE”) and
advised Passaro to handle his own investigations.
On February 21, 2012, VDSP issued to Passaro a “Notice of Improvement
Needed/Substandard Performance.” That notice advised Passaro, among other things, that he
had failed to submit proper paperwork and documentation on multiple occasions and had failed
to properly prepare for a meeting with a Commonwealth’s Attorney. The improvement plan
contained in that notice stated that Passaro needed to demonstrate greater autonomy and an
ability to work efficiently without supervision. On February 22, 2012, Passaro and First
Sergeant Holland spoke on the phone. Passaro told First Sergeant Holland that he believed that
1
Group II offenses “include acts and behavior of a more severe and/or repetitive nature
and are such that an additional Group II offense should normally warrant removal.” VDSP
General Order ADM 12.02(12)(a).
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Holland had asked Passaro to sever ties with ICE. First Sergeant Holland told Passaro that was
not his instruction. First Sergeant Holland then told Passaro that he did expect Passaro to work
his cases from start to finish and told Passaro that his heavy reliance on ICE must cease. That
same day, Passaro submitted a transfer request to another position within VDSP. On March 2,
2012, Passaro amended his transfer request to include two additional positions.
On April 6, 2012, First Sergeant Holland met with Passaro and told him that he had
turned over too many of his assigned cases to be completed by Agent Wolpert. First Sergeant
Holland also stated that it was Passaro’s responsibility to work his own cases and to only have
ICE provide assistance when necessary. First Sergeant Holland informed Passaro that Passaro
should obtain search warrants and seize evidence and then send it to the VDSP’s laboratory for
evaluation, as opposed to the ICE laboratory.
On April 26, 2012, Passaro and Agent Wolpert conducted a “knock and talk”
investigation at what was described by the hearing officer as “Mr. W.’s residence” in
Chesapeake to investigate suspicious internet activity related to child pornography. On a
computer found at that residence, the agents found a folder that contained “titles of images and
videos that were indicative of child pornography.” Passaro and Agent Wolpert informed
“Mr. W.” that they needed to take the computer and have it erased. Agent Wolpert took the
computer to his laboratory to examine the contents of its hard drive. On May 3, 2012, ICE
conducted an examination of the computer at the ICE lab and found only titles of files that
seemed indicative that those files may have contained child pornography and adult pornography.
ICE then removed the files, removed the file sharing software that was on Mr. W.’s computer,
and ran a program to “wipe” the hard drive of the computer. Passaro retrieved the computer
from Agent Wolpert on May 4, 2012. Passaro then returned the computer to Mr. W. When he
did so, Passaro told Mr. W. that no prosecution would occur – without talking with the
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Commonwealth’s Attorney about whether one would occur and despite not having any authority
to determine whether a criminal prosecution was appropriate.
Passaro wrote in his report on the “knock and talk” investigation that the titles of images
and videos on the computer yielded information of evidentiary value. First Sergeant Holland had
not previously been informed that Agent Wolpert would be assisting Passaro with this particular
investigation. After Passaro filed his report, First Sergeant Holland developed several concerns:
(1) that Passaro relinquished the seized computer to Agent Wolpert without completing the
SP-165 form, (2) that the computer was returned to Mr. W. but there was no indication in writing
from Passaro of what was found on the computer or if anything had been removed or deleted,
and (3) that there was no court order granting Passaro the authority to destroy the evidence on
the computer’s hard drive. When First Sergeant Holland first asked Passaro how many images
were found on the computer that day, Passaro stated he did not know because Agent Wolpert
“handled that.” On May 16, 2012, Passaro told First Sergeant Holland that the computer
contained around 100 images of adult pornography and three titles of files that were indicative of
child pornography – but no actual images of child pornography.
On July 20, 2012, Dr. Susan Waller diagnosed Passaro with post traumatic stress disorder
(“PTSD”) as a direct result of repetitive exposure to psychologically traumatic images of child
pornography – a requirement of his job with the High Tech Crimes Unit of VDSP.
Dr. Waller recommended not exposing Passaro to child pornography at work. On September 12,
2012, Dr. Waller reevaluated Passaro and came to the conclusion that Passaro was once more “fit
for full duty” after having completed a leave of absence as long as he did not resume his
investigations involving child pornography. Passaro nevertheless resumed working in the High
Tech Crimes Unit. On November 20, 2012, Dr. Brian Wald drafted an evaluation of Passaro
after subjecting him to psychological testing for PTSD. Based on that evaluation, Dr. Wald
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concluded that Passaro “is not currently able to perform as a Special Agent in the State Police”
because the High Tech Crimes Unit “is an emotional trigger for his distress and may continue to
cause PTSD reactions.”
On February 11, 2013, Passaro requested formal mediation of the issues related to his
employment. In a February 14, 2013 letter responding to Passaro’s counsel, VDSP declined to
mediate with Passaro, citing an “active administrative investigation concerning Special Agent
Passaro” that was underway at that time. On March 27, 2013, VDSP issued Passaro a Group II
Written Notice for failing to follow instructions and/or policy related to his actions during the
“knock and talk” investigation in Chesapeake. The written notice alleged:
During the investigation of computer child pornography, you failed
to properly document the seizure of evidence (custody chain),
failed to record the seized computer as evidence, and relinquished
the evidence to ICE Agent Wolpert without authorization or
documentation. You spoke independently and prematurely with
[the computer owner] that “there would be no criminal charges
filed” without approval from the Commonwealth Attorney’s
Office. These actions constitute a violation of General Order
ADM 12.02, paragraph 12 b (I); to-wit, failure to follow a
supervisor’s instructions, perform assigned work or otherwise
comply with applicable established policy (Group II Offense).
As of the date of the issuance of that notice, Passaro had a prior active disciplinary action – a
Group II Written Notice dated July 28, 2010 for failure to follow established written policy.
Passaro was terminated on March 27, 2013.2 On April 3, 2013, Passaro again requested formal
mediation. On April 11, 2013, VDSP responded and again declined to mediate with Passaro,
citing Passaro’s termination from the State Police.
2
Upon the accumulation of two active Group II Written Notices, VDSP may remove an
employee. VDSP General Order ADM 12.02(12)(c). Pursuant to VDSP General Order ADM
12.02(14)(a), Group II Written Notices have a three-year active period from the date the notice
was issued to the employee.
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Passaro then initiated an employee grievance action, which is the subject of this appeal.
After a two-day hearing, the hearing officer concluded, “The Agency has presented sufficient
evidence to support the issuance of a Group II Written Notice. [Passaro] has a prior active
Group II Written Notice. Upon the accumulation of two active Group II Written Notices, an
agency may remove an employee. Accordingly, [Passaro’s] removal must be upheld.” On
November 6, 2013, the administrative review opinion of the Office of Employment Dispute
Resolution (“EDR”) of the Department of Human Resources Management (“DHRM”) concluded
there was no cause to disturb the decision of the hearing officer. On November 15, 2013, the
policy ruling of DHRM concluded it had no basis to interfere with the decision of the hearing
officer.
Passaro then appealed to the Circuit Court of the City of Chesapeake, and VDSP
cross-appealed. On June 9, 2014, the circuit court overruled and dismissed the entirety of
VDSP’s cross-appeal. The circuit court also overruled and dismissed Passaro’s assignments of
error, with one exception. The circuit court remanded the matter back to the hearing officer for
“further consideration of the testimony offered by Special Agent Wolpert and factual
determinations, if any, as a result. Upon remand and further consideration as specified in this
order, the hearing officer shall affirm, reverse or amend his prior ruling, as appropriate.”
On remand, the hearing officer asserted that he fully considered the testimony of all
witnesses, including Agent Wolpert’s testimony. On April 23, 2015, the hearing officer affirmed
the original hearing decision. On June 15, 2015, the second administrative review opinion of
EDR upheld the second decision of the hearing officer. On August 6, 2015, the second policy
ruling of DHRM concluded it had no basis to interfere with the application of the reconsideration
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decision of the hearing officer. On February 5, 2016, the circuit court also upheld the decision of
the hearing officer. This appeal followed.3
II. ANALYSIS
A. STANDARD OF REVIEW
Pursuant to state employee grievance procedure, a party has a right to judicial appellate
review of grievance hearing decisions on the grounds that the determinations were “contradictory to
law.” Code § 2.2-3006(B). The state employee grievance procedure creates a “tripartite review
procedure” setting forth the following roles: (1) the hearing officer is the finder of fact and final
authority on factfinding; (2) DHRM and EDR determine whether the hearing officer’s ruling is
in compliance with personnel policy and grievance procedure respectively; and (3) the courts
determine whether the grievance determination is “contradictory to law.” Va. Dep’t of State
Police v. Barton, 39 Va. App. 439, 445, 573 S.E.2d 319, 322 (2002). Pursuant to that review
procedure, the hearing officer’s findings of fact and the administrative determinations of
compliance with grievance procedure by EDR and personnel policy by DHRM are not subject to
judicial review. Id.
The courts are limited to ascertaining compliance with constitutional provisions, statutes,
regulations, and judicial decisions. Va. Polytechnic Inst. & State Univ. v. Quesenberry, 277 Va.
420, 429, 674 S.E.2d 854, 858 (2009). Therefore, any determination that should properly be
categorized as an issue of fact, policy, or procedure is outside the scope of judicial review. The
same standard of review applies both in the circuit court and in this Court. Va. Dep’t of Corr. v.
3
On March 27, 2013, VDSP also issued Passaro a Group III Written Notice for making a
false official statement, a Group III Written Notice for theft, and a Group III Written Notice for
damaging state property or records. The hearing officer rescinded all three Group III Written
Notices. Neither party appealed the hearing officer’s decision to rescind those Group III Written
Notices to this Court.
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Compton, 47 Va. App. 202, 219, 623 S.E.2d 397, 405 (2005). Because the only issues that are
actually within the scope of our review are issues of law, we review these issues de novo. Pound
v. Dep’t of Game & Inland Fisheries, 40 Va. App. 59, 64, 577 S.E.2d 533, 536 (2003). The
appealing party has the burden to “identify[] the law . . . contradicted” by the hearing officer’s
decision. Quesenberry, 277 Va. at 429, 674 S.E.2d at 858.
B. EVIDENTIARY SUPPORT FOR THE DECISION OF THE HEARING OFFICER
Passaro asserts in his first two assignments of error that “the ruling of the hearing officer
is without sufficient support in the record.” Specifically, Passaro contends that the hearing
officer assigned improper weight to the testimony of Passaro’s supervisor, First Sergeant
Holland, without giving due consideration to the testimony of Passaro’s own witness, Agent
Wolpert.
Pursuant to Code § 2.2-3006(B), Passaro may only appeal the hearing officer’s decision
“on the grounds that the determination is contradictory to law.” The statutes dealing with state
employee grievances make clear that
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. In
the grievance process, neither of these determinations is subject to
judicial review, but only that part of the grievance determination
“contradictory to law.”
Barton, 39 Va. App. at 445, 573 S.E.2d at 322. Applying that standard of review, we find that
the issues Passaro raises in his first two assignments of error fall outside of the scope of judicial
review pursuant to Code § 2.2-3006(B).
Pursuant to established case law, the hearing officer’s findings of fact are not subject to
judicial review. Barton, 39 Va. App. at 445, 573 S.E.2d at 322. On appeal, however, Passaro
challenges the hearing officer’s decision to uphold his termination by attacking the hearing
officer’s findings of fact – specifically the hearing officer’s determinations regarding the
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credibility of First Sergeant Holland and Agent Wolpert. However, Passaro has failed to identify
any constitutional provision, statute, regulation, or judicial decision which the hearing officer’s
decision contradicts. Accordingly, because, in this particular argument, Passaro has not asserted
that the hearing officer’s decision was “contradictory to law,” this Court lacks any basis for
reviewing the hearing officer’s decision pursuant to Code § 2.2-3006(B).
Alternatively, Passaro argues that the hearing officer’s decision was “contradictory to
law” because that decision would have required Passaro to “violate the legal rights of a citizen”
in order to avoid termination. In other words, Passaro asserts that, if he had acted as required by
his employer, Passaro would have violated a private citizen’s (Mr. W.’s) Fourth Amendment
rights because “Passaro had no legal authority to ‘seize’” the computer in question. However,
there is simply no merit to the contention that Passaro was terminated because he refused to
violate the constitutional rights of Mr. W. as part of the “knock and talk” investigation Passaro
and Agent Wolpert were doing. Instead, it plainly appears from the record that Passaro’s
termination was predicated upon Passaro’s “failure to follow a supervisor’s instructions, perform
assigned work or otherwise comply with applicable established policy,” as detailed in the March
27, 2013 Group II Written Notice.
The hearing officer found that Passaro’s termination was proper because the evidence
established that Passaro failed to follow a supervisor’s instructions during the “knock and talk”
investigation (1) when he delegated his investigatory responsibilities to Agent Wolpert, (2) when
he failed to use VDSP’s laboratory to analyze the contents of Mr. W.’s computer, and (3) when
he failed to file necessary paperwork. Appellant is simply not logically persuasive that his
supervisors’ instructions to lead his own investigations, to use state police laboratory resources,
and to complete necessary paperwork would have required Passaro to violate Mr. W.’s Fourth
Amendment rights. In addition, the decision of the hearing officer was in no way predicated
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upon the hearing officer’s interpretation of the Fourth Amendment.4 Therefore, we reject
Passaro’s arguments from his first two assignments of error that the hearing officer’s decision
was “contradictory to law.”
C. ALLEGED EXPIRATION OF PASSARO’S PRIOR GROUP II WRITTEN NOTICE
Passaro alleges in his third assignment of error that the hearing officer erred when it
relied on an expired Group II Written Notice to justify VDSP’s termination of Passaro. Passaro
notes that his prior Group II Written Notice was issued on July 28, 2010. Because a Group II
Written Notice expires after three years, Passaro argues that notice expired on July 28, 2013 and
thus could not be considered by the hearing officer when he upheld Passaro’s termination on
September 9, 2013.
When a Group II Written Notice expires is a matter of agency policy governed by
General Orders of VDSP. Pursuant to the state employee grievance procedure, the General
Assembly has vested review of policy issues involved in such cases in DHRM, and not in the
courts. See Code § 2.2-3006. In Barton, this Court determined that any dispute over the
meaning of a General Order of VDSP “is a matter of internal agency policy.” Barton, 39
Va. App. at 446, 573 S.E.2d at 323.
VDSP General Order ADM 12.02(14)(a) states, “Group II Written Notices shall have a
three year ‘active’ period from the date the notice was issued to the employee.” In both its
4
Again, Passaro was not terminated based on an allegation that he violated the Fourth
Amendment rights of a private citizen. This fact distinguishes this matter from this Court’s
decision in Osburn v. Va. Dept. of Alcoholic Beverage Control, 67 Va. App. 1, 792 S.E.2d 276
(2016). In that case, the Virginia Department of Alcoholic Beverage Control (“ABC”)
terminated Osburn because he had violated an ABC license applicant’s constitutional rights
during a site inspection. Thus, this Court was permitted to determine on appeal whether the
decision of the hearing officer was “contradictory to law” because the employee grievance
determination necessarily involved the interpretation of Fourth Amendment jurisprudence, which
is simply not the case in this matter.
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November 15, 2013 and August 6, 2015 policy rulings in this matter, DHRM made the following
conclusions of policy:
the dates for consideration of active notices are based on [] the
dates of issue. In this case the grievant had an active Group II
Written Notice (issued on July 28, 2010) and a second active
Group II Written Notice (issued March 27, 2013) that was not
rescinded. The hearing date was June 20, 2013 and the decision
was issued on September 9, 2013. While the July 28, 2010 notice
had expired before the hearing was held and [] before the hearing
decision was issued, the July 28, 20135 and the March 27, 2013
notices were active at the same time. Therefore, the accumulation
of written notices was sufficient to uphold dismissal.
In this matter, DHRM determined as a matter of policy that a prior Group II Written Notice is
“active” for the purposes of employee discipline if that prior written notice was active on the date
the second such Group II Written Notice was issued. Thus, DHRM found that the accumulation
of written notices was sufficient here because the July 28, 2010 notice was still active on the date
of the issuance of the March 27, 2013 notice. In short, three years had not expired from the
issuance of the first Group II Written Notice before the issuance of the March 27, 2013 Group II
Written Notice. Furthermore, Passaro has not asserted that this policy determination is
“contradictory to law.” Thus, Passaro’s requested review of DHRM’s administrative policy
determination that VDSP properly terminated him based on his accumulation of Group II
Written Notices is not subject to judicial review.
D. ALLEGATIONS OF RETALIATION AND ABUSE
Passaro asserts in his fourth assignment of error that the hearing officer erred by “failing
to acknowledge unrebutted evidence of unlawful retaliation and abusive behavior.” The hearing
5
Because there is a Group II Written Notice dated July 28, 2010 in the record, but there
is no Group II Written Notice dated July 28, 2013, the Court concludes that the “July 28, 2013”
date cited in this sentence of DHRM’s November 15, 2013 opinion was a scrivener’s error that
should be “July 28, 2010.”
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officer’s factual findings on this issue included the following: “There is insufficient evidence to
support the conclusion that [VDSP] took disciplinary action against [Passaro] because of a
dislike of [Passaro] rather than because of a legitimate objective of addressing [Passaro’s] work
performance.” Again, Passaro has failed to state how this ruling was “contradictory to law.”
This factual determination (as well as the weight that the hearing officer assigned to the evidence
presented regarding Passaro’s treatment by supervisors) is outside of the scope of judicial review
of this appeal from the decision of an administrative agency. See Code § 2.2-3006(B). Passaro
also asserts that the behavior of Passaro’s supervisors rose to the level of violations of VDSP
General Order ADM 12.02.6 In Barton, this Court determined that VDSP’s General Orders are
not laws for the purposes of Code § 2.2-3006(B) (formerly Code § 2.1-116.07:1) because those
orders are designed by VDSP “to govern its internal policies.” 39 Va. App. at 443 n.2, 573
S.E.2d at 321 n.2. Because Passaro’s argument is actually premised on the theory that VDSP
violated its own policy by failing to follow its own disciplinary rules and procedures, we find
this assignment of error cannot be considered by this Court pursuant to Code § 2.2-3006(B).
E. PASSARO’S REQUESTS FOR TRANSFERS
In his fifth assignment of error, Passaro argues that the hearing officer contradicted law
and policy by not concluding that VDSP failed to “carefully review” Passaro’s transfer request
pursuant to VDSP General Order ADM 6.00(16).7 In short, Passaro’s argument is premised on
6
VDSP General Order ADM 12.02 is designed to “provide a comprehensive description
of the types of actions that may result in removal or suspension from the Department, as well as
other disciplinary measures that may be taken to correct employee behavior that does not meet
the standards of the Department.”
7
The stated purpose of VDSP General Order ADM 6.00 is to “describe general eligibility
requirements and procedures for assignments and transfers.” Subsection (16), in relevant part,
states, “Supervisors should determine eligibility requirements by carefully reviewing the request
with the employee.”
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the theory that VDSP violated its own policy when it elected not to transfer Passaro to a new
position. Again, Passaro has failed to state how the ruling by the hearing officer on this issue
was “contradictory to law.” At most, Passaro can assert that the hearing officer and DHRM
misinterpreted VDSP General Order ADM 6.00(16) and misapplied that general order to the
facts of this case. Because Passaro’s argument is again premised on the theory that VDSP
violated its own policy by failing to follow its own disciplinary rules and procedures regarding
transfers, we find this assignment of error cannot be considered by this Court pursuant to
Code § 2.2-3006(B).
F. PASSARO’S REQUESTS FOR MEDIATION
Passaro asserts in his sixth and final assignment of error that VDSP unlawfully refused to
comply with mediation provisions set forth in Code § 2.2-3000.8 In other words, Passaro asserts
that the employee grievance decisions below were “contradictory to law” because VDSP had
declined to mediate Passaro’s employee grievance action when he requested it. We disagree.
Our review of the relevant statutes compels this Court to conclude that there is no
statutory authority in support of Passaro’s argument that VDSP was required by law to
participate in meditation when requested to do so by Passaro. As stated by EDR in its second
administrative review opinion:
The grievant argues that the agency has failed to comply with law
and policy by rejecting the grievant’s requests for mediation.
Section 2.2-3000(B)(4) of the Code of Virginia provides that each
agency shall participate in the state workplace mediation program
administered by EDR pursuant to Section 2.2-1202.1. Contrary to
the grievant’s assertions, the agency is a participant in EDR’s
mediation program. Further, under its statutory directive to
establish a workplace mediation program, EDR has promulgated
Workplace Mediation Program Guidelines. Section II(A) of those
Guidelines provides that mediation through the state workplace
8
Code § 2.2-3000(B)(4) states, “To fully achieve the objectives of this chapter and to
create uniformity, each agency in the executive branch of state government shall . . . [p]articipate
in the mediation program.”
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mediation program is a voluntary process. As participation in a
mediation is voluntary, EDR cannot conclude that the agency has
violated its obligations under law and policy by electing not to
participate in mediation with the grievant.
Certainly, VDSP is required by Code § 2.2-3000 to participate in EDR’s state workplace
mediation program. However, as noted by EDR in its administrative review opinion, VDSP is a
participant in EDR’s statewide mediation program and VDSP has an “agency workplace
mediation coordinator” for EDR mediation.
Passaro argues that VDSP must mediate an employee grievance dispute whenever an
employee such as Passaro requests mediation. He also contends that the remedy for the failure
of VDSP to agree to mediation is the reversal of VDSP’s termination of him. We disagree.
While VDSP is required by statute to create the mechanism through which an employee may
seek informal dispute resolution through EDR’s mediation program, there is no language in Code
§ 2.2-3000 that requires VDSP to mediate this dispute with Passaro whenever he requests it.
Absent a statutory requirement that a state agency must engage in informal dispute resolution
with an employee whenever it is requested by the employee, Passaro cannot successfully assert
the hearing officer’s decision was “contradictory to law.” In addition, EDR determined that, as a
matter of employee grievance procedure, a decision to enter into mediation is voluntary –
meaning that an employee such as Passaro cannot compel his employer to mediate by simply
expressing a desire to mediate. It would defy any logic if – as soon as VDSP initiated an
administrative investigation into an employee’s conduct or even terminated an employee’s
services – an employee could actually forestall the agency’s use of disciplinary measures, even
temporarily, by then requesting mediation. In short, we reject Passaro’s interpretation of Code
§ 2.2-3000 and find that the hearing officer’s decision was not “contradictory to law.”
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III. CONCLUSION
Viewing this case in accordance with the particular standard of review required for
administrative appeals of state employee grievances, we cannot find that the hearing officer acted
“contradictory to law” in declining to reinstate Passaro to employment at the Virginia Department
of State Police. Consequently, we find that the circuit court did not err in affirming the hearing
officer’s decision. Accordingly, we affirm the judgment of the circuit court.
Affirmed.
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