Commonwealth of Virginia Department of Corrections v. Jacoby Garrett

• Court: Court of Appeals of Virginia
• Decided: March 8, 2022
• Docket: 0796212
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, O’Brien and Fulton UNPUBLISHED

Argued by videoconference

COMMONWEALTH OF VIRGINIA DEPARTMENT OF CORRECTIONS

v. Record No. 0456-21-2

JACOBY GARRETT MEMORANDUM OPINION* BY JUDGE RANDOLPH A. BEALES COMMONWEALTH OF VIRGINIA MARCH 8, 2022 DEPARTMENT OF CORRECTIONS

v. Record No. 0796-21-2

JACOBY GARRETT

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Beverly W. Snukals, Judge

Ryan S. Hardy, Assistant Attorney General (Mark R. Herring,1 Attorney General; Ronald N. Regnery, Senior Assistant Attorney General; Kati K. Dean, Assistant Attorney General, on briefs), for appellant.

Robert J. Allen (ThorsenAllen LLP, on briefs), for appellee.

These two consolidated appeals arise from a grievance action that Jacoby Garrett

(“Garrett”) filed against his employer, the Virginia Department of Corrections (“VDOC”). A

hearing officer upheld VDOC’s decision to terminate Garrett’s employment. Garrett appealed to

the Circuit Court of the City of Richmond (“circuit court”). The circuit court subsequently

remanded the case back to the hearing officer to reopen the record in order to consider an issue

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022. that had not been raised during the earlier proceedings before the hearing officer. After the

hearing officer engaged in additional factfinding on remand, the hearing officer reversed his

initial decision and reinstated Garrett to his job. VDOC then appealed to the circuit court, which

upheld the hearing officer’s reinstatement of Garrett. VDOC now appeals to this Court.

I. BACKGROUND

Garrett worked for VDOC as a Telecom/Network Coordinator. VDOC’s policies called

for termination of employment for any employees who tested positive for illegal substances. On

June 28, 2018, Garrett was selected for a random drug test and was told to report to Human

Resources in his building. Garrett initially consented to being tested, but he ultimately left the

Human Resources office and never returned to be tested that day. As a result, on July 17, 2018,

VDOC issued Garrett a Group III written notice of disciplinary action for failing to submit to the

testing and terminated his employment.

On August 6, 2018, Garrett filed a grievance action challenging his termination pursuant

to the state grievance procedure. He claimed that he did not refuse to submit to the drug test and

that he did not violate any VDOC policies. In the alternative, he argued that any violation “was

improperly classified as a Group III violation and should have been a less[e]r violation.”

Garrett’s case was assigned to a hearing officer, and a hearing was held on October 10, 2018.

Garrett argued before the hearing officer that VDOC “denied him substantive and procedural due

process.” After taking evidence and making findings of fact on the issues presented by the

parties, the hearing officer concluded that the decision to terminate Garrett was “within the

Agency’s discretion” and upheld Garrett’s termination by VDOC.

Garrett appealed to the circuit court. In his appeal, Garrett argued that the random drug

testing policy violated his “right to be free from unlawful search and seizures pursuant to the

Fourth Amendment of the United States Constitution.” Garrett contended that he did not have a -2- “safety-sensitive” position with VDOC that would make a random drug test appropriate under

the Fourth Amendment. In response, VDOC argued that Garrett’s failure to raise any Fourth

Amendment issues to the hearing officer precluded him from raising a Fourth Amendment

challenge to his termination for the first time on appeal to the circuit court.

At a hearing held on February 27, 2019, the circuit court judge asked Garrett’s counsel

why he did not initially raise the Fourth Amendment issue with the hearing officer. Garrett’s

counsel replied, “Well, it would put us in a position where we would have to put on evidence of

every conceivable argument that we would possibly use only if we lost.” The circuit court judge

then stated, “Right, but that argument is your main argument on appeal.” Garrett’s counsel

replied, “It is the main argument.”

On April 5, 2019, the circuit court issued an opinion letter concluding that Code

§ 2.2-3006(B) allows for new legal challenges to be raised on appeal challenging a hearing

officer’s decision. The circuit court relied on Virginia Polytechnic Institute and State University

v. Quesenberry, 277 Va. 420, 429 (2009), for the proposition that the “standard of review

‘focuses solely on the question whether the hearing officer’s decision is contradictory to any

applicable law.’” Consequently, upon finding “there is scant information on the record that is

relevant” to the Fourth Amendment issue, the circuit court concluded that the case needed to be

remanded back to the hearing officer to reopen the record and to “develop the factual record as to

the newly raised argument and to make a decision in light of” the newly raised Fourth

Amendment argument. The circuit court concluded that Code § 2.2-3006(B) grants the circuit

courts “the power to remand the matter back to the hearing officer to develop facts on the record

to allow courts to determine whether the decision itself is contradictory to law.” Consequently,

on April 5, 2019, the circuit court entered an order (the “order remanding to the hearing officer”)

directing the hearing officer to make findings of fact on whether Garrett’s “employment with the -3- Virginia Department of Corrections was a ‘safety-sensitive job’ that qualifies as an exception to

the warrant requirement of the Fourth Amendment.”

On remand, the hearing officer found that Garrett was not employed in a

“safety-sensitive” position under the Fourth Amendment and, therefore, subsequently reinstated

Garrett to his position with VDOC. VDOC then appealed that decision to the Office of

Employment Dispute Resolution at the Virginia Department of Human Resource Management,

but it “decline[d] to disturb” the hearing officer’s decision. VDOC then appealed to the circuit

court, which upheld the hearing officer’s decision to reinstate Garrett.

VDOC then appealed Garrett’s reinstatement to this Court.

II. ANALYSIS

In these appeals, VDOC challenges the circuit court’s authority under “Code

§ 2.2-3006(B) to remand the matter back to the Hearing Officer to develop the factual record.”

VDOC also asserts that the circuit court “erred in considering Appellee’s [Garrett’s] Fourth

Amendment challenge” because Garrett “failed to preserve the issue by intentionally raising it

for the first time on appeal to the Circuit Court.” VDOC also challenges the circuit court’s ruling

under Garrett’s Fourth Amendment rights “because VDOC’s legitimate governmental interest

outweighed Appellee’s [Garrett’s] privacy interests.” Finally, both VDOC and Garrett assign

error to the circuit court’s ruling on attorney fees.

A. The State Grievance Procedure

“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.’” Passaro v. Va. Dep’t of State -4- Police, 67 Va. App. 357, 367 (2017) (quoting Va. Dep’t of State Police v. Barton, 39 Va. App.

439, 445 (2002)). “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.’” Id. (quoting Code § 2.2-3006(B)). “On appeal from a state

employee grievance decision, courts are bound by the factual findings of the hearing officer and

may only reverse or modify the decision if it is ‘contradictory to law.’” Osburn v. Va. Dep’t of

Alcoholic Beverage Control, 295 Va. 10, 17 (2018). “The appealing party must ‘identify [a]

constitutional provision, statute, regulation or judicial decision which the [hearing officer’s]

decision contradicted.’” Quesenberry, 277 Va. at 429 (alterations in original) (quoting Tatum v.

Va. Dept. of Agric., 41 Va. App. 110, 122 (2003)). “Questions regarding whether a decision is

contradictory to law, including the meaning of any underlying statutes, are reviewed de novo.”

Osburn, 295 Va. at 17.

As an initial matter, the circuit court clearly sits as an appellate court in state grievance

proceedings, as Code § 2.2-3006(B) provides that “[w]ithin 30 days of a final decision, a party

may appeal on the grounds that the determination is contradictory to law by filing a notice of

appeal with the clerk of the circuit court[.]” (Emphasis added); see also Passaro, 67 Va. App. at

361 (“The circuit court, sitting as an appellate court, affirmed the decision of the hearing

officer.”). Code § 2.2-3006(B) further provides that “[w]ithin 30 days of receipt of the grievance

record, the court, sitting without a jury, shall hear the appeal on the record” and “may affirm the

decision or may reverse or modify the decision” of the hearing officer. (Emphasis added). Thus,

the statutory framework governing the state grievance procedure clearly manifests the General

Assembly’s intent to grant circuit courts appellate jurisdiction over a hearing officer’s

employment determination under the state grievance procedure.

-5- In this case, Garrett argued on appeal to the circuit court that his Fourth Amendment

rights were violated, but the circuit court found that there was “scant information” in the record

before it on appeal that was “relevant to the issue of whether [Garrett’s] employment constituted

a ‘safety-sensitive’ position” under the Fourth Amendment. As a result, the circuit court directed

the hearing officer to “develop the factual record” beyond the evidence that was originally

presented to the hearing officer. Essentially, upon finding that the record on appeal was

insufficient to decide Garrett’s Fourth Amendment argument, the circuit court remanded the case

to the hearing officer to reopen the record and make additional findings of fact related to

Garrett’s Fourth Amendment argument.

On appeal, it is well-established that “the burden is on the appellant to present to us [the

appellate court] a sufficient record from which we [the appellate court] can determine whether

the lower court has erred in the respect complained of.” Justis v. Young, 202 Va. 631, 632

(1961); accord Woods v. R.D. Hunt & Son, Inc., 207 Va. 281, 287 (1966) (“[T]he onus is upon

the appellant to provide us with a sufficient record from which we can decide whether the trial

court erred as alleged.” (emphasis in original)); see also McDonald v. Nat’l Enterprises, Inc.,

262 Va. 184, 195 (2001) (“As the appellant in this appeal, McDonald has the burden to present a

sufficient record on which this Court can determine whether the circuit court erred as McDonald

contends.”); Bunton v. Commonwealth, 6 Va. App. 557, 561 (1988) (“Bunton has the

responsibility of providing the record on appeal necessary to enable the reviewing court to

address the issues. As he has failed in that responsibility, we cannot consider the merits of his

appeal.”). The appellant bears this burden because, as the Supreme Court of Virginia has

repeatedly recognized, “on appeal the judgment of the lower court is presumed to be correct.”

Justis, 202 Va. at 632; see also, e.g., Shipman v. Fletcher, 91 Va. 473, 487 (1895) (“The

judgment of a court of competent jurisdiction is justly entitled to great weight. It is always -6- presumed to be right until the contrary is shown. An appellate court will not overturn it unless

satisfied that it is wrong. It devolves on the party complaining to show error, and to satisfy the

appellate court that the judgment or decree complained of is wrong.”); McArter v. Grigsley, 84

Va. 159, 162 (1887) (noting that “the action of the court below, upon old and well-established

principles, must be presumed to be right”).

It is likewise well-established that appellate courts “may act only upon facts contained in

the record.” Jackson v. Commonwealth, 44 Va. App. 218, 224 (2004). Thus, “[t]he importance

of the record is obvious, for it is axiomatic that an appellate court’s review of the case is limited

to the record on appeal.” Turner v. Commonwealth, 2 Va. App. 96, 99 (1986); see also, e.g.,

Wilkins v. Commonwealth, 64 Va. App. 711, 717 (2015). Consequently, “[a] failure to furnish a

sufficient record will result in an affirmance of the judgment appealed from.” Woods, 207 Va. at

287.

Here, Garrett did not provide a sufficient record to the circuit court so that it could make

a ruling to determine whether the hearing officer’s decision was contradictory to law under the

Fourth Amendment. The circuit court judge directly asked Garrett’s counsel, “why wasn’t the

Fourth Amendment brought up” before the hearing officer. Garrett’s counsel replied, “It would

put us in a position where we would have to put on evidence of every conceivable argument that

we would possibly use only if we lost” even though counsel acknowledged that the Fourth

Amendment argument was “the main argument” on appeal to the circuit court. Furthermore,

when asked a similar question by this Court during oral argument, Garrett’s counsel candidly

stated that “certainly if we could go back in time, yes, we would present the Fourth Amendment

argument at the initial hearing.” Thus, Garrett’s own admissions demonstrate that he engaged in

a litigation strategy where he presented a portion of his case to the hearing officer and then

sought to present another different portion of his case to the circuit court when the matter was on -7- appeal there, which left the circuit court without the necessary record on which to make its ruling

whether Garrett’s termination was contradictory to law under the Fourth Amendment.2

The circuit court—sitting as an appellate court—should have limited its review to the

record then in front of it on appeal. The hearing officer did not make any factual findings on

whether Garrett’s employment status was in a “safety-sensitive” position as an employee because

Garrett never raised that issue for the hearing officer’s consideration. 3 If the circuit court could

not determine from the record before it on appeal whether the hearing officer’s decision was

contradictory to law, Garrett simply failed to carry his burden of providing a record sufficient to

enable an appellate court to review his claim of error in the judgment from which he appealed.

See Woods, 207 Va. at 287. 4 Consequently, this Court holds that the circuit court erred in its

decision to remand the case back to the hearing officer so that it could “develop the factual

record” outside of the scope of the issues presented to the hearing officer in the first hearing and

so that the hearing officer could make additional factfinding on an issue that was not even in the

2 This Court appreciates and values the candor of Garrett’s counsel in his answers during oral argument before this Court, as “[s]uch candor by counsel embodies the ethical duties expected of a legal advocate and is held in high esteem.” Nimety v. Commonwealth, 66 Va. App. 432, 436 n.3 (2016). 3 In the hearing officer’s initial ruling, he stated, “The employee has the burden of raising and establishing any affirmative defenses to discipline and any evidence of mitigating circumstances related to discipline. Grievance Procedure Manual (‘GPM’) § 5.8.” 4 In state grievance procedure cases, the Supreme Court has recognized that the party appealing the hearing officer’s decision properly bears the burden of identifying any applicable law in challenging the hearing officer’s decision. See Quesenberry, 277 Va. at 420. This Court’s decision today does not preclude an appealing party from raising a constitutional provision for the first time on appeal. However, given that the circuit court sits as an appellate court and is limited to reviewing the record of the proceedings below, the appellant still bears the burden of providing a sufficient record for the circuit court to determine if the hearing officer’s decision is contradictory to law under Code § 2.2-3006(B). -8- record of the grievance proceedings. See Turner, 2 Va. App. at 99.5 Therefore, this Court

reverses the circuit court’s order remanding to the hearing officer and now remands the case

back to the circuit court so that it can make a ruling based on the factual findings in the record

that was first before the circuit court at the time it originally decided to remand the case back to

the hearing officer.6

B. Attorney Fees

Both VDOC and Garrett assign error to the circuit court’s ruling awarding Garrett

attorney fees. Code § 2.2-3006(E) provides that the circuit court “shall award reasonable

attorneys’ fees and costs to the employee if the employee substantially prevails on the merits of a

case.” This Court’s decision today reverses the circuit court’s order affirming the hearing

officer’s decision to reinstate Garrett. Because the circuit court has now been instructed to

consider only the evidence in the record that the circuit court had before it at the time of its initial

5 A remand back to the hearing officer can be appropriate in certain circumstances. For instance, in Passaro, 67 Va. App. at 366, 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.” The circuit court directed the hearing officer to “affirm, reverse or amend his prior ruling, as appropriate.” Id. In that case, “[o]n remand, the hearing officer asserted that he fully considered the testimony of all witnesses, including Agent Wolpert’s testimony” and “affirmed the original hearing decision.” Id. In our present matter, the circuit court remanded the case back to the hearing officer to determine a completely new issue of whether Garrett’s “employment with the Virginia Department of Corrections was a ‘safety-sensitive job’ that qualifies as an exception to the warrant requirement of the Fourth Amendment” because “scant information on the record” existed relating to Garrett’s status as a “safety-sensitive” employee. The remand in Passaro allowed the hearing officer to further consider or reconsider evidence and testimony already in the record—unlike here where the circuit court required the hearing officer to engage in new factfinding and “develop the factual record” on an issue not contained within the record on appeal of the grievance proceedings. 6 As this case is remanded back to the circuit court for a new hearing on the first record that was before it, this Court does not decide VDOC’s assignment of error relating to the Fourth Amendment ruling by the circuit court. The circuit court is instructed on remand to make a ruling on that issue based on the record that the circuit court originally had before it when the circuit court had decided to remand the case back to the hearing officer. -9- ruling in this matter, Garrett has no longer substantially prevailed on the merits of his case, and,

therefore, we must reverse the circuit court’s ruling awarding attorney fees to Garrett.7

III. CONCLUSION

In short, because the circuit court sits as an appellate court in state grievance procedure

cases, the circuit court cannot engage in any factfinding because the factual findings made by the

hearing officer are final, and the circuit court can only determine if the hearing officer’s decision

is contradictory to law, pursuant to the requirements of Code § 2.2-3006(B). See Passaro, 67

Va. App. at 367. As the circuit court is acting as an appellate court in these cases, the circuit

court is limited to the record that it has before it on appeal. See Turner, 2 Va. App. at 99 (“The

importance of the record is obvious, for it is axiomatic that an appellate court’s review of the

case is limited to the record on appeal.”). In addition, the Supreme Court has determined that,

for an appealing party, “failure to furnish a sufficient record will result in an affirmance of the

judgment appealed from.” Woods, 207 Va. at 287.

In the present matter, Garrett failed to establish a record on appeal to the circuit court on

his Fourth Amendment challenge to the hearing officer’s decision. Garrett did not provide any

factual findings from the hearing officer that his job was not a “safety-sensitive” position under

the Fourth Amendment. Indeed, the hearing officer decided to uphold the termination of

Garrett’s employment on other grounds. Garrett did raise the Fourth Amendment challenge

during his appeal to the circuit court, but his counsel candidly admitted to the circuit court that he

had intended to raise a Fourth Amendment argument in this matter only if he had lost before the

hearing officer.

7 Of course, if Garrett “substantially prevails” in the hearing that will occur upon remand from this Court to the circuit court, then the circuit court would still be required to award him attorney fees under Code § 2.2-3006(E). - 10 - The circuit court stated that there was “scant information on the record” of any evidence

relating to the Fourth Amendment and, therefore, remanded the case back to the hearing officer

to determine whether Garrett held a “safety-sensitive” position. However, the circuit court—

which was sitting as an appellate court here—erred in its decision to remand the case back to the

hearing officer to reopen the record to engage in new factfinding on an issue on which the

hearing officer had not made any findings of fact. In short, the circuit court failed to limit its

review to the record that the circuit court initially had before it on appeal.

Therefore, for all of these reasons, this Court reverses the circuit court’s order remanding

to the hearing officer. We now remand the case back to the circuit court to make a ruling on the

hearing officer’s initial decision to uphold Garrett’s termination based on the record that the

circuit court had before it at that time. In short, this Court directs the circuit court to make its

ruling on Garrett’s Fourth Amendment legal arguments based on that record before the circuit

court had remanded the case back to the hearing officer. This Court also reverses the circuit

court’s order awarding Garrett attorney fees and also remands this issue so that the circuit court

can make a ruling on attorney fees based on whether Garrett “substantially prevails,” pursuant to

Code § 2.2-3006(E), on this remand back to the circuit court.

Reversed and remanded.

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