COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Petty and Chafin 

Argued at Lexington, Virginia 

VIRGINIA DEPARTMENT OF CORRECTIONS 

 MEMORANDUM OPINION

 BY 

v. Record No. 1561-13-3 JUDGE WILLIAM G. PETTY 

 JUNE 3, 2014 

TAMMY M. HAYDEN 

FROM THE CIRCUIT COURT OF WYTHE COUNTY 

Charles H. Smith, Jr., Judge Designate 

 Richard C. Vorhis, Senior Assistant Attorney General (Kenneth T. 

Cuccinelli, II, Attorney General; Mark R. Herring, Attorney General, 

on briefs), for appellant. 

 David G. Harrison (The Harrison Firm, PC, on brief), for appellee. 

The Virginia Department of Corrections (VDOC) appeals from an order of the circuit 

court reversing the Department of Employment Dispute Resolution’s (DEDR) decision 

sustaining Tammy Hayden’s termination from the VDOC. Hayden’s for cause termination was 

based upon her failure, in two separate cases, to issue a notice of transfer to a receiving 

jurisdiction that a parolee was moving into its district. On appeal, the VDOC assigns two errors 

to the circuit court’s decision: (1) “The [c]ircuit [c]ourt erred as a matter of law in ruling that 

Appellee Hayden was denied her right to procedural due process in that the hearing officer 

upheld discipline imposed by the Appellant agency in spite of the agency not conducting a full 

and thorough disciplinary investigation”; and (2) “[t]he [c]ircuit [c]ourt erred as a matter of law in 

ruling that the hearing officer did not make a finding that [Hayden’s] actions or inactions endangered 

 

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

UNPUBLISHED 
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public safety.” For the reasons stated below, we agree that the circuit court erred; therefore, we 

reverse the judgment below and reinstate the termination for cause. 

I. 

On appeal, we ordinarily recite the facts in the light most favorable to the prevailing party 

below. “In cases involving administrative review of state employee grievances, however, the 

light-most-favorable rendition of the facts is inapt.” Va. Dep’t of Transp. v. Stevens, 53 

Va. App. 654, 658, 674 S.E.2d 563, 565 (2009). “In reviewing agency factfinding, a circuit 

court acts much like an appellate court—reviewing the facts developed in the agency record in 

the light most favorable to the party prevailing in that forum and deferring to agency factfinding 

unless patently insubstantial.” Id. at 658, 674 S.E.2d at 565. We apply the same standard. 

II. 

A. Judicial Review of Agency Policy 

 The VDOC first argues that the circuit court erred as a matter of law in ruling that 

Hayden was denied her right to procedural due process because it failed to conduct a full and 

thorough disciplinary investigation. We agree. 

 “[T]he Code of Virginia provides grievance procedures applicable to state agency 

employees, granting an employee a right to a hearing before a designated hearing officer when 

that employee has been formally disciplined.” Virginia Polytechnic Inst. & State Univ. v. 

Quesenberry, 277 Va. 420, 428, 674 S.E.2d 854, 858 (2009); see Code §§ 2.2-3001 and 

2.2-3004(A)(i). The DEDR will appoint a hearing officer that “has certain powers and duties 

with regard to a grievance hearing, including consideration of evidence and the determination of 

appropriate remedies.” Quesenberry, 277 Va. at 428, 674 S.E.2d at 858; see Code §§ 2.2-3005 

and 2.2-3005.1. “The hearing officer’s decision is final and binding ‘if consistent with law and 

policy.’” Quesenberry, 277 Va. at 428, 674 S.E.2d at 858; see Code § 2.2-3005.1(C)(iii). 
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If a grievant contends that the hearing officer’s decision is contrary 

to the “policy” of the state agency employing the grievant, the 

grievant may request that the decision be reviewed by the Director 

of the Department of Human Resources Management, who shall 

determine whether the hearing officer’s decision “is consistent 

with [agency] policy.” 

Quesenberry, 277 Va. at 429, 674 S.E.2d at 858. Hayden did not request such a “policy” review 

in this case. Instead, Hayden appealed the hearing officer’s decision directly to the circuit court. 

 In reviewing the hearing officer’s decision, the circuit court held that Hayden 

was denied her right to procedural due process guaranteed by both 

the Constitution of the United States and the Constitution of 

Virginia in that the hearing officer upheld the discipline imposed 

by the [VDOC] when the [VDOC] admitted not only that it failed 

to follow its own policy that it conduct a “full and thorough 

disciplinary investigation,” but that it conducted no investigation at 

all. 

 Thus, the circuit court’s ruling is premised on the theory that the VDOC violated its own 

policy by not conducting a full and thorough investigation. The circuit court does not have the 

authority to make such a determination. 

“[T]he 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.” 

Quesenberry, 277 Va. at 430, 674 S.E.2d at 859 (emphasis added) (quoting Virginia Dept. of 

State Police v. Barton, 39 Va. App. 439, 445, 573 S.E.2d 319, 322 (2002)). 

Here, the circuit court failed to identify any part of the grievance determination that was 

“contradictory to law.” Instead, the circuit court held that the VDOC failed to follow its own 

policy and that failure amounted to a violation of procedural due process. As stated above, the 

circuit court does not have the authority to determine whether the VDOC failed to follow its own 
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policy.1

 Because of this, the circuit court had no basis for reviewing the hearing officer’s 

decision. Accordingly, we hold that the circuit court erred in ruling that Hayden was denied her 

right to procedural due process because the VDOC failed to follow its own policy requiring a full 

and thorough disciplinary investigation. 

B. Judicial Review of Factual Findings 

 The VDOC next argues that the circuit court erred in holding that the hearing officer 

failed to make a finding that Hayden’s action endangered the public safety. We agree. 

The circuit court held 

that the hearing officer did not make a finding that anything 

[Hayden] did endangered public safety. Counsel for the [VDOC] 

acknowledged in oral argument that if the hearing officer did not 

make a finding that anything [Hayden] did endangered public 

safety, the Group III Written Notice with termination must be 

struck down.2

 1

 Nevertheless, Hayden argues that an agency’s violation of its own policy is a due 

process violation. Assuming without deciding that the circuit court had the authority to 

determine whether the agency violated its own policy, the circuit court did not address—and 

Hayden neither alleges nor argues—that Hayden reasonably and detrimentally relied on the 

grievance policy requiring a full and thorough investigation. In Lee v. City of Norfolk, 281 Va. 

423, 436, 706 S.E.2d 330, 337 (2011) (quoting Jones v. Bd. of Governors, 704 F.2d 713, 717 

(4th Cir. 1983)), the Supreme Court stated, quoting a Fourth Circuit opinion, that “‘significant 

departures from stated procedures of government and even from isolated assurances by 

governmental officers which have induced reasonable and detrimental reliance may, if 

sufficiently unfair and prejudicial, constitute procedural due process violations.’” However, the 

Supreme Court went on to require that the aggrieved raise this issue in the pleadings or on 

appeal. Hayden “neither alleged nor argued that [s]he relied on the ‘assurances [of] 

governmental officers which have induced reasonable and detrimental reliance.’” Id. at 437, 706 

S.E.2d at 337 (quoting Jones, 704 F.2d at 717). 

2

 Code § 2.2-3005.1(C) requires: 

The decision of the hearing officer shall (i) be in writing, 

(ii) contain findings of fact as to the material issues in the case and 

the basis for those findings, including any award of reasonable 

attorney fees pursuant to this section, and (iii) be final and binding 

if consistent with law and policy. 
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 This holding is contrary to the factual findings of the hearing officer. The hearing officer 

made factual findings that the actions, or inactions, of Hayden constituted a breach of public 

safety. The hearing officer, in her original decision, stated, “There was considerable testimony 

about the definition of ‘public safety.’ While no bright line was defined, [Hayden’s] actions (or 

lack thereof) were clearly by all measures a significant breach of safety.” Moreover, in her final 

decision, the hearing officer stated the findings of fact she made in regard to public safety: 

The purpose of probation is to monitor the rehabilitation of 

offenders and to protect the public, should the offender not 

assimilate into society. Keeping track of offenders was clearly an 

integral part of a probation officers [sic] duties which Grievant 

failed to perform. Grievant admitted she was aware of her duties 

to be in contact with her wards and she was aware that public 

safety was a part of her job. 

The hearing officer is the fact finder. See Code § 2.2-3005(C)(5). The hearing officer’s 

factual findings are not subject to review and are binding on appeal, unless inconsistent with law 

and policy. See Barton, 39 Va. App. at 445, 573 S.E.2d at 322. Whether Hayden’s actions, or 

inactions, endangered the public safety is a factual determination that is exclusively within the 

province of the hearing officer; it is not subject to review by the circuit court unless it is 

inconsistent with law and policy. Thus, the circuit court could not disregard the hearing officer’s 

factual findings regarding the public safety issue. Accordingly, we hold that the circuit court 

erred in holding that the hearing officer failed to make a finding that Hayden’s actions 

endangered the public safety. 

III. CONCLUSION

For the foregoing reasons, we reverse the judgment of the circuit court and enter final 

judgment reinstating the hearing officer’s decision. 

Reversed and final judgment.