COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Hu ff, Judges Beales and AtLee Argued by teleconference

VIRGINIA DEPARTMENT OF JUVENILE JUSTICE v. Record No. 1812-14-2
SEAN MILNER MEMORANDUM OPINION * BY JUDGE RANDOLPH A. BEALES VIRGINIA DEPARTMENT OF JUVENILEJUSTICE JULY 21, 2015 v. Record No. 2147-14-2
SEAN MILNER

FROM THE CIRCUIT COUR T OF HENRICO COUNTY Margaret P. Spencer, Judge Designate G. William Norris, Jr., Assistan t Attorney General (Mark R. Herring, Attorney General; Rhodes Ritenour, Deputy Attorney General; Ryan Spreague Hardy, Assi stant Attorney Genera l, on briefs), for appellant. James B. Thorsen (Thorsen Ha rt & Allen, LLP, on brief), for appellee.
The Virginia Department of Ju venile Justice (DJJ) appeals a ru ling of the Circuit Court of Henrico County reversing a decision by a hearing officer in an em ployee grievance filed by Sean Milner (Milner) and granting Milne r’s request for relief, which includ es reinstatement to his former position as Court Services Unit (CSU) Director. DJJ also appeals from a separate order by the circuit court awarding Milner attorney’s fees and co sts accrued during the proceedings in that court. We hold that the hearing officer’s decision was not contrary to law and, acco rdingly, we reverse the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - circuit court’s orders granting Milner’s requested reinstatement as CSU Director and awarding him attorney’s fees and costs.
I. B ACKGROUND This grievance arises from Miln er’s reassignment from his former position as Director of the CSU for the Henrico County Juven ile and Domestic Relations Distri ct Court (JDR court) to the newly created position of Assistan t Certification Manager. The CS U provides support services to the JDR court. It is not a part of the judicial bran ch but instead is a part of DJJ, a department in the executive branch. Code § 16.1-233. Nonetheless, the CSU is located in the same building as the Henrico JDR court, and the JDR co urt is the “primary customer” of the services rendered by the CSU staff. The position of CS U Director, which Milner held, is a statutory creation. Code § 16.1-236.1(A). Acco rding to that statute, the Director of a particular CSU must be appointed by the judges of the JDR c ourt served by that CSU (from a list of names of eligible individuals submitted by the Director of DJJ). Id. Meanwhile, the “transfer, demotion, or sepa ration” of a CSU Director is under the authority of the Director of DJJ, but must be for good cause, after consultation with the JDR court judges, and in accordance with the Virginia Personnel Act, including the state employee grievance procedure. Id. On March 21, 2013, fi ve judges of the JDR co urt, along with a former judge, submitted a “no confidence” letter to the Direct or of DJJ, expressing their lo ss of confidence in Milner and complaining of Milner’s management style and interpersonal relatio nship skills. A deputy sheriff escorted Milner from the courthouse and told him he could not return . Subsequently, DJJ conducted an internal in vestigation of Milner. 1 The investigation reveal ed mixed opinions about Milner from CSU staff – along with primarily negative opinions about him from the JDR court

1 The final investigative report states that the investigation resulted from complaints of staff members, as well as from the JDR court judges, about Milner.- 3 - judges. The investigation also found that most CSU staff belie ved the relationship between the CSU and the JDR court was very poor. After the investigation was co mpleted, DJJ reassigned Miln er from CSU Dire ctor to the newly created position of Assist ant Certification Manager, and th e reassignment became final on July 12, 2013. Milner had not be en aware of the inves tigation while it took place, and he did not receive a copy of the investigative report until July 15, 2013. Milner ’s salary and benefits remained the same in the new positi on, and he in fact later received a rais e. His supervisory role was greatly reduced however, as he had only four employees re porting to him in the ch ain of command in his new position, compared to around fifty when he was CSU Director.
A. G RIEVANCE P ROCEDURE On July 30, 2013, Milner filed a grievance ch allenging the reassignment and asking to be reinstated as CSU Director. Virgin ia’s state employee grievance proc edure is created by statute, see Code § 2.2-3000 et seq. , and set out in further detail by policy of the Department of Human Resources Management (DHRM) and its sub-ag ency, the Office of Employment Dispute Resolution (EDR). See Office of Emp’t Dispute Resolu tion, Grievance Procedure Manual (2012); Office of Emp’t Dispute Resolution, Rules for Co nducting Grievance Hearings (2012). The process consists of several stages, beginning with three step s of internal dispute reso lution with management of the agency that employed the aggrieved em ployee. Code § 2.2-30 03; Grievance Procedure Manual §§ 3.1-3.3. If the grievance is not resolved after the third resolution step, the employee can then request that his agency he ad qualify the grievance for a he aring. Code § 2.2-3004(D); Grievance Procedure Manual § 4.2. If the agency head does not qualify the gr ievance for a hearing, the employee can appeal the qual ification decision to EDR. Code § 2.2-3004(D); Grievance Procedure Manual § 4.3.- 4 - The Grievance Procedure Manua l states that a grievance should qualify for a hearing if (i) it claims, and (ii) the facts, taken as a whole, raise a sufficient questi on as to whether an adverse employment action has occurred as a result of . . . [i]nformal discipline – for example, terminations, transfers, assignments, demotions, and suspensions – that . . . are taken primarily for disciplinary reasons. Grievance Procedure Manual § 4.1(b). The decision of the hearing officer is final except as to issues of policy and law. Code § 2.2-3005.1(C). The grievant may seek administrative review of the hearing officer’s decision by appealing to EDR, which re views compliance with grievance procedure, and to the Di rector of DHRM, who revi ews the decision for consistency with state or agency policy. Grievance Procedure Manual § 7.2. The grievant may also ap peal the decision to the circuit court to review as to whether the decision is contrary to law. Code§ 2.2-3006(B). Milner and DJJ did not reachan agreement after going through the three internal management dispute resolution steps at DJJ, and th e Director of DJJ refused to qualify Milner’s grievance for a hearing. Milner appealed this qualification de cision to EDR, which issued Qualification Ruling Numb er 2014-3721, qualifying Milner’s gr ievance for a hearing. EDR stated that it had “no basis to disagree with [DJJ’s] assessme nt that the statutory good cause requirement was satisfied,” 2 but did find that the facts of Milner’s gr ievance raised a sufficient question as to whether his reassignment was an “adverse employ ment action” that was taken for disciplinary reasons. On this basis, EDR qual ified the grievance hearing and defi ned the issues to be decided by the hearing officer as follows: Whether the grievant’s reassignmen t was primarily to punish or correct the grievant’s behavior or performance is a factual determination that a hearing officer, not this Office, should make. At the hearing, the grievant will have the burden of proving that the reassignment was adverse and discip linary. If the hearing officer finds that it was, the agency will have the burde n of proving that the

2 This statement was made in reference to the good cause requirement of Code § 16.1-236.1(A) that is necessary for DJJ to tran sfer, demote, or sepa rate a CSU Director.- 5 - action was nevertheless warranted and appropriate. Should the hearing officer find that the reas signment was adverse, disciplinary, and unwarranted and/or inappropri ate, he or she may rescind the reassignment . . . . Milner’s grievance hearing was held on January 6, 2014, and decided on February 20, 2014. The hearing officer’s findings of fact generally reflected positively on Milner, noting that Milner “became Director of an ineffec tive Court Service Unit with nume rous human resource problems” and that Milner took steps to im prove morale, make the CSU more effective, and “put the client first.” The findings of fact also suggested that any dissatisfaction with Milner from CSU employees, as found by DJJ’s in vestigation, was because Milner’s managerial improvements “met resistance from poorly performin g employees.” The hearing officer also found that there was a largely dysfunctional relationship between the CSU and the JDR court, as reflected by the comments of CSU employees in the investigativ e report. The findings of fact noted that Milner and the Chief Judge of the JDR cour t frequently clashed and had a very strained relationship. Addressing the issues as de fined by EDR, the hearing offi cer first found that Milner’s reassignment was an adverse em ployment action due to the change in resp onsibilities between the two positions and the signif icant loss of managerial responsibility in Milner’s new ro le. The hearing officer further found, however, that Milner did not establish “that hi s reassignment was disciplinary in nature by [DJJ],” but rather wa s in response to the JDR court’s ac tions. Noting th at Milner “did not engage in any behavior that would support disciplinary action” by DJJ, the hearing officer still determined that DJJ had good cause, as required by Code § 16.1-236.1, to reassign Milner because the poor relationship between him and the JDR court made it practically impossible for Milner to do his job and for the CSU to functionproperly. The hearing officer di d find that the actions taken by the JDR court were “disci plinary in nature.” However, becaus e Milner was not an employee of the JDR court and the JDR court was not a party to the hearing, the hearing officer determ ined that he did not have jurisdiction to gran t Milner any remedy for these actio ns. Milner then appealed the- 6 - hearing officer’s decision to ED R and DHRM, which concluded that the decision was consistent with grievance procedure and stat e personnel policy, respectively.
B. A PPEAL TO THE C IRCUIT C OURT On April 10, 2014, Milner ap pealed the decisions of the h earing officer, of EDR, and of DHRM to the Henrico County Circui t Court. On Septem ber 2, 2014, the circ uit court ruled in Milner’s favor. The circuit court first focused on the hearing officer’s finding that DJJ’s actions were not disciplinary in nature, but that the JDR court’s actions were. The court held that, as a matter of law, the JDR court could not take disc iplinary action against Milner because to do so would violate the Separation of Po wers doctrine. The court also held that the hearing officer’s finding that the JDR court, and not DJJ, acted in a disciplinary manner was contrary to state grievance procedures and statutes because this finding would “exempt[ ] employees assigned to work in courthouses withjudges from rights and remedies in the code.” These employees, the circuit court elaborated, are not am ong those specifically exempted from the grievance procedure by

statute. In addition, the circuit court found that “the hearing officer ’s conclusion that it lacked jurisdiction is also contrary to law.” The circ uit court noted DJJ’s concession in argument that the hearing officer would have had jurisdiction to grant Milner a remedy if the JDR court’s actions were discriminatory. Similarly here, the circuit cour t stated, “if [DJJ’s] employee was subjected to adverse employment actions and disciplinary actions by the only employer and Executive Branch- 7 - department that could do so as a matter of law,” then the hearing officer had jurisdiction to grant Milner relief. 3 Finally, the circuit court determ ined that the hearing officer’s decision was contrary to Code § 16.1-236.1, whic h explains the requirements that must bemet to transfer a CSU Director. The court noted that the statute does not authorize the JDR court judges to tran sfer a CSU Director, but instead only allows them to act in an advisory role to the DJJ Di rector. The circuit court also stated that whether “good cause” for the transfer existed, as required under the statute, was improperly decided by the hearing officer as a question of fact. In stead, the circuit cour t determined that the existence of good cause, which requires a “legally su fficient ground or reasons” for the transfer, is a question of law that should be addre ssed by the court. The circuit c ourt held that the facts found in the hearing, including the finding that Milner “didnot engage in any behavior that would support disciplinary action,” supported a le gal conclusion that DJJ did not have good cause to transfer Milner. The circuit court entered its order on Septem ber 2, 2014, reversing the hearing officer and “grant[ing] the Appellant Milner’s request for reli ef.” On September 5, 2014, Milner moved the circuit court to award him attorney’s fees pursuant to Code § 2.2-3006(E), and the court granted his motion on November 17, 201 4. DJJ’s appeals from the circuit court’s ruling on the merits and from the circuit court’s award of attorney’s fees were conso lidated into this appeal.

3 The circuit court next f ound that the hearing officer had authority to reduce the discipline imposed on Milner if it believed that di scipline was too severe. This does not appear to be challenged on this appeal by either party. The circuit court also noted that there was no evidence in the record of an order having been en tered by the JDR court that barred Milner from entering the courthouse. The pa rties do not appear to challeng e the circuit court’s decision on this point.- 8 - II. A NALYSIS DJJ raises eight assignments of error on appeal. Six of these assignments of e rror relate to the merits of the circuit court’s decision to revers e the hearing officer, while the other two relate to the circuit court’s award of attorney’s fees to Milner. We disc uss these two classes of alleged error separately.
A. M ERITS OF THE C IRCUIT C OURT ’ S D ECISION 1. S TANDARD OF R EVIEW The state grievance employee procedure limits the scope of review of each body that reviews a grievance after it has gone through the agency’s internal reso lution steps. This “tripartite review procedure” sets forth the following roles: (1) the hearing officer is the finder of fact and final authority on factfinding; (2) DHRM (and EDR, which is part of DHRM) determine whether the hearing officer’s ruling is in compliance with personnel policy and grievance procedure (respectively); and (3) the courts determin e whether the grievance determination is “contradictory to law.” Va. Dep’t of Stat e Police v. Barton, 39 Va. App. 439, 445, 573 S.E.2d 319, 322 (2002). The hearing officer’s findings of f act and the administrative determinations of compliance with grievance procedure by EDR a nd personnel policy by DHRM are not subject to judicial review. Id. The courts are limited to ascertaining complia nce with constitutional provisions, statutes, regulations, and judicial decisi ons. Va. Polytechnic Inst. & St ate Univ. v. Quesenberry, 277 Va. 420, 429, 674 S.E.2d 854, 858 (2009). Therefore, any determination made by the circuit court that should properly be categorized as an issue of fact, policy, or procedure is outside the scope of its review, and the circuit court should insteaddefer to the determinations of the hearing officer and administrative bodies on these issues. The same standard of review th at applies in the circuit court also applies in this Court. Va. Dep’t of Corr. v. Compton, 47 Va. App. 202, 219,- 9 - 623 S.E.2d 397, 405 (2005). Because the only issues th at are actually within the scope of our review (and the circuit court’ s 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).
2. D ISCIPLINARY N ATURE OF M ILNER ’ S R EASSIGNMENT DJJ’s first two assignments of error assert that the circuit court overstepped its limited role in determining that Milner’s reassignment was disciplinary, and ther efore that the hearing could proceed to the issue of whether the reas signment was warranted and appropriate. This action, DJJ argues, usurped the roles of DHRM , EDR, and the hearing officer to make determinations as to policy, procedure, and factua l questions, respectively. We agree that this determination was outside the scop e of the circuit court’s review. As DJJ notes, the grievance procedure is limite d in its applicability, and the criteria for a grievance to proceed to a full hearing are se t out in the Grievance Procedure Manual. Specifically, a grievance may qualify for a hearing if the challenged action amounted to informal discipline. Grievance Procedure Manual § 4.1(b). It was up to EDR to decide whether Milner’s grievance qualified for a hearing under these guidelines, and if it did qualify, what the scope of that hearing would be and what preliminary findings the hearing o fficer would need to make. In this case, the hearing officer was to determine whether the reassignment was an adverse and disciplinary employment action before moving on to the merits. This definition of the issues to be determined by the hearing officer reflected EDR’s interpretation of its own guidelines, and was entitled to deference from th e circuit court. Further, EDR determined after the hearing that the hearing officer’s decision complied with the overall grievance procedure. Similarly, DHRM found that the hearing office r’s decision was in compliance with state personnel policy. To the extent the circuit court found that the hearing offi cer’s decision violated EDR’s or DHRM’s own guidelines, this was in error because the circui t court’s review was- 10 - limited to determining whether the grievance wa s carried out in complia nce with the law. Quesenberry, 277 Va. at 428-29, 674 S.E.2d at 858. The circuit court also erred to the extent it determined, contrary to the hearing officer’s finding, that Milner’s reassignment was disciplinary. First, as noted earlier, EDR defined the scope of the hearing – and specifi cally stated that whether Milne r’s reassignment “was primarily to punish or correct [Milner’s] behavior or perf ormance is a factual determination that a hearing officer, not this Office, s hould make.” This defi nition of the issues, incl uding the description of disciplinary intent as a question of fact, is entitled to deference from the co urts. Furthermore, because DJJ was the party that carri ed out the reassignment of Milner to a different position within DJJ, it necessarily follows that the disciplinary natureof the reassignment depended upon whether DJJ acted with disciplinary intent. Generally, the de termination of a party’s intent is characterized as a question of fact. See, e. g., Mason v. Commonwealth, 49 Va. Ap p. 39, 45, 636 S.E.2d 480, 483 (2006) (“‘Whether the required intent exists is ge nerally a question for the trier of fact.’” (quoting Crawley v. Commonwea lth, 25 Va. App. 768, 77 3, 492 S.E.2d 503, 505 (1997))); Jacobsen v. Jacobsen, 41 Va. App. 582, 58 9, 586 S.E.2d 896, 899 (2 003) (“‘Intent . . . is a question of fact to be determined from the evidence.’” (quoting Hall Bldg. Corp. v. Edwards, 142 Va . 209, 215, 128 S.E. 521, 523 (1925))). Here, the hearing officer’s dete rmination that DJJ did not act with disciplinary intent was likewise a finding of fact that the circuit court, ac ting here as an appellate court, had no authority to reverse. For this reason, we also agree with DJJ’s fourth assignment of error, namely that the circuit court erred in reversing the hearing officer’s deci sion based on the Separation of Powers doctrine. This holding by the circuit court appears to be based upon a misc haracterization of the hearing officer’s findings. While the hear ing officer found that the JDR court’s actions were “disciplinary in nature,” the circuit court app eared to interpret this as a fi nding that the JDR court actually- 11 - disciplined Milner and was responsibl e for his reassignment. It then held that this version of events constituted a Separation of Powers violation because Milner was an employee of the executive branch and the JDR c ourt is a part of the judicial branch. This reasoning, however, is flaw ed. The circuit court was correct to note that the JDR court did not have direct authority to discipline Miln er, an employee of a di fferent branch of the government. This, however, is not what the hear ing officer found to have taken place. Although the hearing officer noted that the JDR court’s actions were “discip linary in nature,” there is no indication that he found that the JDR court took th e actual step of reassignin g Milner. In fact, the hearing officer’s opinion strongly supports the view that the JDR court did no t have authority to do so. In addition, as DJJ notes, it is not a constitutiona l violation for some overlap to exist between the functions of the different branches. Taylor v. Worrell Enters., Inc., 242 Va. 219, 221-22, 409 S.E.2d 136, 138 (19 91). Here, the JDR court acted in a purely advisory role when it issued its no-confidence letter, as th e ultimate decision of whether to remove Milner from his position rested with the Director of DJJ. Furthermore, to the ex tent the JDR court influenced DJJ’s decision, this was permissible, as th ere was a practical neces sity that the JDR court and the CSU Director maintain a good – or at least a functional – working relationship.
3. G OOD C AUSE DJJ’s third assignment of error alleges that the circuit court er red in finding that DJJ did not have “good cause” to tr ansfer Milner to his new positi on, as is required under Code § 16.1-236.1(A). DJJ urges us to treat the hearing officer’s find ing of good cause as a finding of fact, in which case, as discussed supra , it is entitled to de ference from the cour ts. However, even assuming, without deciding, that the existence of good cause is actually a question of law, DJJ has presented sufficient evidence to show that it reassigned Milner from CSU Director to Assistant Certification Manager for good caus e. Although th e hearing officer found th at Milner did not do- 12 - anything that was deserving of punishment, DJJ had good reason not to let him remain as CSU Director. DJJ did not have any authority to ma ke the JDR court judges change their opinion of Milner or to force them to cooperate with him. It also had a legitimate interest in doing what was necessary to maintain a working relationship be tween its employees and the JDR court. DJJ determined, within its discretion, that the Henrico CSU could no longer function w ith Milner as Director because, rightly or wrongly, it was im possible for him to do his job as CSU Director. In fact, DJJ even took step s to minimize the adve rse effect of Milne r’s reassignment. Milner’s new position provi ded the same salary and benefits, and he eventua lly received a raise. DJJ offered to keep the investigation report out of Milner’s personnel file, and even offered to let him submit a backdated “voluntary transfer request” so that it would not appear that he was forced out as CSU Director. Although DJJ could not gr ant Milner’s request to name him Director of another CSU because that appointment required appr oval by the judges of that court under Code § 16.1-236.1(A), it noted th at Milner was still welc ome to apply for any vacancies in these positions or any higher-level positions. These facts, take n as a whole, do not sugg est that DJJ reassigned Milner arbitrarily or as a form of unwarranted pu nishment, but instead did so because it found that, by the very nature of his position , Milner needed to be reassigned to enable a functional working relationship to exist between the He nrico CSU and the JDR court judges.
4. C ONSISTENCY WITH G RIEVANCE S TATUTES DJJ’s fifth assignment of erro r challenges the circuit court’s ruling that the h earing officer’s decision – specifically its finding that DJJ did not take disciplinary action – was inconsistent with grievance procedure as set out by st atute. The circuit c ourt asserted that this decision contradicts Code §§ 2.2-3001(A), 2.2- 3002, and 2.2-3005.1(A) because it left no remedy for M ilner, effectively exempting him from the protections of the grieva nce procedure despite not being listed as an exempt employee. This reading, however, appears to confuse the fact that Milner did not achieve- 13 - his desired result with a lack of procedural fairness. The grievance process is a limited statutory remedy for state employees, and not every employment action qualifi es for a hearin g under this process. Here, Milner’s grievance went through every procedural step available under statute and policy to which he was en titled based on the facts of his case. The administrative b odies responsible for interpreting these requir ements found that Milner would not be entitled to argue the merits of his reassignment, unless he proved that DJJ’s actions were disciplinary, and this interpretation is entitled to deference. Ju st because Milner did no t meet his burden does not mean the process he went through was unfair. Similarly, we also agree with DJJ’s sixth as signment of error – that the circuit court was incorrect in finding that the hearing officer’s conc lusion that he lacked jurisdiction over the JDR court was contrary to law. The circuit court dete rmined that the hearing o fficer had jurisdiction to take the necessary action pursuant to Code § 2 .2-3005(C)(7) because Milner was subject to an adverse employment action by DJJ th at arose from a disciplinary-type action by the JDR court. The circuit court also expressed concer n that, if the hearing officer di d not have jurisd iction over the JDR court, then a remedy might not be available in instances where the JDR court acted with discriminatory intent. Code § 2.2-3005(C)(7), however, limits the hearing officer’s ability to take reme dial action “as necessary or specified in the grievance procedur e.” Therefore, the hearin g officer needed to act within the limits of the grievance procedure, as interpreted by EDR in its qualific ation ruling. The hearing officer also could not ta ke action against the JD R court for any of it s acts, as this was outside the scope of the grievance. See Rules fo r Conducting Grievance H earings § IV.A. This issue is one of policy and procedur e, which was properly disposed of at the administrative level, and is, consequently, outside the scope of this Cour t’s review – and the ci rcuit court’s review.- 14 - In addition, the circuit court’s fears of discri mination are inapplicable in this case because Milner never alleged that any of the parties invo lved acted with discriminatory intent – e.g., discrimination based on race, gend er, or national origin. If he had alleged discrimination, other remedies may well have been available. For ex ample, under the Grievan ce Procedure Manual, if Milner had alleged discrimination, then the heari ng officer would not have even needed to make a preliminary finding that Milner’s employer had acted in a disciplinary manner. See Grievance Procedure Manual § 4.1(b) (dis tinguishing between grievances for alleged discrimination and grievances for informal disciplina ry actions). Other judicial remedies outside of the grievance process may also have been available to Milner if he had alleged and shown discrimination.
B. A TTORNEY ’ S F EES DJJ’s final two assignments of error challenge the circuit court’s award of attorney’s fees and costs to Milner. Code § 2.2-3006(E) states that a court “shall award reas onable attorney’s fees and costs to the employee if the employee substantia lly prevails on the merits ” of his case. Because we reverse the ruling of th e circuit court on the mer its, Milner no longer substan tially prevails in this matter, and, therefore, he is not entitled to an award of attorney’s fees an d costs. Consequently, we vacate the circuit court’s award of attorney’s fees and co sts. We, therefore, need not reach DJJ’s other assignment of error arguing voidness on the issue of attorney’s fees. We also likewise deny Milner’s request for an award of attorney’s fees incurred in the ap peal to this Court.
III. C ONCLUSION Viewing this case in accordance with the particular standard of review required for appeals of state employee grievances, we find that the hearing officer did not act contrary to law in declining to reinstate Sean Milner to his former position as Director of th e Court Services Unit for Henrico County. Therefore, we find that the circuit court erred in reversi ng the hearing officer’s decision. Accordingly, we reverse the circuit court’s ruling on the appeal of the he aring officer’s decision,- 15 - and reinstate the decision of the hearing officer . We also, consequently, reverse and vacate the circuit court’s award of attorney’s fees to Milner.

Reversed.