Present: All the Justices 

COMMONWEALTH OF VIRGINIA, 

DEPARTMENT OF ENVIRONMENTAL 

QUALITY 

 OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 972436 September 18, 1998 

STEVEN B. WRIGHT 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

G. O. Clemens, Judge Designate 

 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, 

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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 

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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 

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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 

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Commonwealth asserted the circuit court had "no authority to 

implement nonbinding recommendations made by hearing officers." 

 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 

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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." 

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 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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