COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Petty and Senior Judge Haley Argued at Alexandria, Virginia

DONNA COFFEY MEMORANDUM  OPINION BY v. Record No. 0529-13-4 JUDGE WILLIAM G. PETTY OCTOBER 29, 2013 VIRGINIA DEPARTMENT OF JUVENILE JUSTICE

FROM THE CIRCUIT COURT OF CULPEPER COUNTY Susan L. Whitlock, Judge D. Brock Green (Jones & Green, LLP, on briefs), for appellant. Wesley G. Russell, Jr., Deputy Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Ronald R. Re gnery, Senior Assistant Attorney General; Guy W. Horsley, Jr., Special Assistant Attorney General, on brief), for appellee.
Donna Coffey appeals the decision of the Ci rcuit Court of Culpeper County that the hearing officer’s decision to mitigate Coffey’s punishment from termination to suspension was “contradictory to law” within the meaning of C ode § 2.2-3006(B). In her third assignment of error, Coffey argues that the circ uit court erred when it determin ed that the hearing officer’s decision was “contradictory to law” and misapp lied the appropriate stan dard of review in reaching that decision. 1 For the reasons expressed below, we agree. Accordingly, we reverse the circuit court’s decision and reinstat e the hearing officer’s decision.

 Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 In light of our decision on this assignment of error, we need not address Coffey’s first, second, and fourth assignments of error.UNPUBLISHED- 2 - I. Because the parties are fu lly conversant with the record in this case and this memorandum opinion carries no precedential valu e, we recite below only those facts and incidents of the proceedings as are necessary to the parties’ understandin g of the disposition of this appeal. Furthermore, although an appellate cour t ordinarily recites the facts in the light most favorable to the prevailing party in the circuit court, “[i]n cases involving administrative review of state employee grievances, . . . the light-most- favorable rendition of the facts is inapt. The facts of this case came before the circuit court, as they do to us, ‘on the record’ developed in the agency proceedings.” Va. Dep’t of Transp. v. Stevens, 53 Va. App. 654, 658, 674 S.E.2d 563, 565 (2009). Coffey was employed by the Department of Ju venile Justice (“Agency ”) as a trainer and instructor at one of its facil ities. On June 7, 2012, while superv ising students clean a hallway, Coffey, “out of reflex” when she heard a student cursing, hit the student’s mouth with the back of her hand. Striking residents of the facility is a violation of bot h Department of Human Resource Management (“DHRM”) and Department of Correctional Educ ation policy. The principal of the facility later learned of Coffey’s actions and re ported the matter to the managers at the Agency’s Central Office for further consideration. The managers decided that Coffey should be terminated and ordered the principal to issue the written notice. On June 27, 2012, the principal issued a written notice of a Group III o ffense to Coffey and terminated her employment with the Agency. Pursuant to the procedures set forth by the DHRM in its Grievance Procedure Manual, Coffey timely filed a grievance to challenge the Agency’s action. On September 26, 2012, the hearing officer issued a decision reducing the Group III written notice wi th termination to a Group II written notice with a ten-work-day suspen sion. As a result, Coffey was reinstated to- 3 - her same position or its equivalent with back pay. The hearing o fficer found that the principal, and therefore, the Agency, inc onsistently disciplined employ ees for similar conduct. The principal was aware of another Agency employee who hit students but ch ose not to report the employee’s conduct to the Central Office. This finding of inconsistent application of employee discipline justified the h earing officer in reducing Coffey’s discipline. See Rules for Conducting Grievance Hearings § VI(B)(2). The Agency sought administrative review of that decision by the Office of Employment Dispute Resolution (“EDR”) at the DHRM. The EDR determined that the hearing officer’s decision was consistent with pol icy and, therefore, there was no basis upon which to interfere with its decision to mitigate Coffey’s discipline. The Agency then appealed the matter to the circuit court. The ci rcuit court reversed the hearing o fficer’s decision, finding that it was “contradictory to law” within the meaning of Code § 2.2-3006, and rein stated the discipline administered by the Agency. 2 Coffey appealed to this Court.
II. On appeal, Coffey argues that the circuit cour t erred when it determined that the hearing officer’s decision was “contradictor y to law” and misapplied the a ppropriate standard of review in reaching that decision. “The General Assembly has clearly vested re view of policy issues involved in employee grievances in the Department of Human Resource Management, a nd not in the courts.” Va. Dep’t of State Police v. Barton, 39 Va. A pp. 439, 445, 573 S.E.2d 319, 323 (2002). In fact, review of state employee grievances requires a “tripartite review procedure”—vested only minimally in the courts. Id. at 445, 573 S.E.2d at 322. Under this review procedure, “the

2 The circuit court also addressed the heari ng officer’s finding that Coffey and another employee, whose actions were not reported to the Central Office, were similarly situated. The court held that it did not have au thority to review that finding. That issue is not on appeal here.- 4 - hearing officer is to act as fact finder and the Director of the [DHRM] is to determine whether the hearing officer’s decision is c onsistent with policy.” Id. “[N] either of these determinations is subject to judicial review . . . .” Id. Rather, “[t]he only grounds of appeal of the hearing officer’s decision [to the circuit co urt] is ‘that the determination is contradictory to law.’” Id. (quoting Code § 2.2-3006(B)). To reverse th e hearing officer’s decision, the court must “‘identify [a] constitutional provision, statute, regulation or judicial decision which the [hearing officer’s] decision contradict[e d].’” Tatum v. Va. Dep’t of Agric. & Consumer Servs., 41 Va. App. 110, 122, 582 S.E.2d 452, 458 (2003) (altera tions in original) (quoting Barton, 39 Va. App. at 446, 573 S.E.2d at 323). We are likewis e limited to such a review in considering whether the circuit court erred in its determination. Pound v. Dep’t of Game & Inland Fisheries, 40 Va. App. 59, 64, 577 S.E.2d 533, 535 (2003). Moreover, this case is controlled by our deci sion in Tatum. In Tatum, the employee was issued a Group III written notice and terminated from his employment. Tatum, 41 Va. App. at 114, 582 S.E.2d at 454. The matter came before a h earing officer who reduced the disciplinary action to a Group III written not ice without removal. Id. at 115-16, 582 S.E.2d at 455. The hearing officer mitigated the discipline based on consideration of the employee’s favorable work performance and nine years of employment with the Commonwealth. Id. at 115, 582 S.E.2d at 455. The circuit court reversed the hearing officer’s decision ordering reinstatement, holding that it was “contrary to law because the heari ng officer overrode the Department’s ‘management decision’ with respect to the appropriate discipline to impose upon a finding of Group III misconduct, where the Department’s decision was not arbitrary or contrary to law.” Id. On appeal, this Court reversed the de cision of the circuit court, holdi ng that the Department failed to establish that the hearing officer’s decision contradicted any “law” and that the circuit court erred by inquiring into whether the hearing officer substitu ted his judgment for that of the agency. Id.- 5 - at 125, 582 S.E.2d at 459. We noted that although the hearing officer should give appropriate deference to agency management decisions that ar e consistent with law an d policy, “no statute or rule provides that the hearing officer may orde r reinstatement only where the agency’s decision was arbitrary or contrary to law.” Id. at 123, 582 S.E.2d at 459. In fact, we stated that the hearing officer must review the evidence de novo to determine whether the agency has proven by a preponderance of the evidence that the discipli nary action was warranted and appropriate under the circumstances and whether there were mitig ating circumstances to justify reduction or removal of the disciplinary acti on. Id. at 122-23, 582 S.E.2d at 458. We reasoned that it is the purview of the Director of the DHRM to dete rmine whether a hearing officer’s decision is consistent with policy. Id. at 121, 582 S.E.2d at 458. That decision is “fin al and not subject to judicial review as a matter of la w.” Id. at 118, 582 S.E.2d at 456. In Tatum, the Department appealed to both the Director of the DHR M and the Director of the EDR—both rejected the Depart ment’s assertion that the hear ing officer did not follow state policies and procedures in making its decision. Thus, the circuit court in Tatum was bound by the decisions of the Directors of the EDR and the DHRM. We reversed on appeal because the circuit court failed to demonstrat e any “law” contradicted by the hearing officer’s decision. Id. at 124, 582 S.E.2d at 459. Here, the circuit court couched its reversal of the hearing officer’s decision to mitigate Coffey’s termination to a suspension in terms of it being “contradictory to law.” However, like the circuit court in Tatum, the circuit court failed to demonstrate that the hearing officer’s decision was, in fact, contradictory to law. On the contrary, the circuit court acted as the fact finder in this case and substituted its judgment for that of the hearing officer—it determined that mitigation based on inconsistent application of discipline was inappropriate in this case. However, as we noted in Tatum, “The hearing officer is expressly auth orized to reduce the- 6 - discipline if the officer finds th at the level or severity of di scipline for the misconduct was too severe.” Id. at 123, 582 S.E.2d at 458. Just as in Tatum, “the ad judicative acts of the hearing officer [in this case] were grounded in and c onsistent with the provi sions of Code §§ 2.2-3003 and 2.2-3005, as well as the Rule s for Conducting Grievance Hear ings, VI(B).” Id. at 124, 582 S.E.2d at 459. Moreover, the Agency’s assertion that th e hearing officer did not follow policy and procedures in considering or weighing mitigati ng circumstances was rejected by the Director of the EDR. Thus, the circuit court was bound by th at policy decision becaus e it is final and not subject to judicial review as a matter of law. See Office of Employment Dispute Resolution, Grievance Procedure Manual, § 7.2(c); see also Code §§ 2.2-1001(5) a nd 2.2-3003(G). As we stated, “The General Assembly has clearly vested review of policy issu es involved in employee grievances in the Department of Human Resource Management, and not in the courts.” Barton, 39 Va. App. at 445, 573 S.E.2d at 323. Therefore, because it did not limit its analysis of the hearing officer’s decision to whether it was contradictory to law, the circuit court mi sapplied the appropriate st andard of review and, ultimately, failed to demonstrate any such contradiction.
III. For the foregoing reasons, we reverse the circuit court’s decision. Reversed.