Drewery v. City of Roanoke

63 Va. Cir. 609, 2001 Va. Cir. LEXIS 512
CourtRoanoke County Circuit Court
DecidedSeptember 7, 2001
DocketCase No. CL01-748; Case No. CL01-749; Case No. CL01-769
StatusPublished
Cited by3 cases

This text of 63 Va. Cir. 609 (Drewery v. City of Roanoke) is published on Counsel Stack Legal Research, covering Roanoke County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drewery v. City of Roanoke, 63 Va. Cir. 609, 2001 Va. Cir. LEXIS 512 (Va. Super. Ct. 2001).

Opinion

By Judge Clifford R. Weckstein

[610]*610Three Roanoke City police officers have appealed the City Manager’s determination that complaints they have made are not “grievable.” The question for judicial review is a narrow one. I cannot decide whether the officers’ complaints have merit; I review only the decision that the officers failed to state a claim for which relief can be granted under the City’s grievance procedure.

Officer J. R. Drewery, Detective Scott Altizer, and Officer Susan A. Camper, the grievants, hold the rank of senior police officer in the Roanoke City police department. In separate complaints, they attempted to avail themselves of the grievance procedure adopted by the City pursuant to the provisions of Virginia Code §§ 15.2-1506 etseq. and Roanoke City Code § 2-61.1. Each officer alleged that, on June 13, 2001, two other officers were promoted to sergeant, while she or he was passed over for promotion for less qualified candidates. Each officer alleged that the police department failed to follow and unfairly applied its published promotional policies and procedures. The City Manager determined that these complaints could not be pursued in grievance proceedings, and the officers appealed that determination, pursuant to the City’s Personnel Operating Procedure (POP) # 6, § 5(b). Cf. Va. Code § 15.2-1507(A)(9). The state law under which the City adopted its grievance procedure requires the court to determine “whether the grievance qualifies for a panel hearing.” Va. Code § 15.2-1507(A)(9)(b). The court may affirm the decision of the City Manager, or reverse or modify her decision. POP # 6 § (5)(b). Under the City’s operating procedures, and as state law requires, this court’s decision is final and cannot be appealed. POP # 5(C); see Va. Code § 15.2-1507(A)(9)(b); City of Danville v. Franklin, 234 Va. 275, 361 S.E.2d 634 (1987).

As the City’s grievance procedure mandates, all three officers met with their immediate supervisors on June 28, 2001, for “an informal, initial processing of an employee complaint ... through a nonwritten, discussion format.” POP # 6, §§ (7)(a), (8)(a). Since these meetings did not resolve their grievances, each officer, following the procedures set out in POP # 6, § 7, filed on that day a written complaint, using a form supplied by the City. The complaints are substantially identical. (Each complaint contains a table comparing some background characteristics of the grievant and of the two officers chosen for promotion; each complaint states the grievant’s ranking at the conclusion of the Sergeant’s Assessment Center. In all other respects, the complaints are identical.) After the City Manager decided that each complaint was “nongrievable,” the officers noted their separate appeals. The three officers are represented by the same lawyer; the same assistant City Attorney represents the City in all three cases. By agreement of counsel, the three [611]*611appeals were heard by the court at the same time. Following this lead, I decide these three separate cases in a single opinion letter.

A “grievance,” as defined in Roanoke City’s operating procedures, is “a complaint or dispute by an employee relating to his or her employment,” including, but not limited to “the application of personnel policies, procedures, rules, and regulations.” However, complaints about “failure to promote,” are “nongrievable,” “except where the employee can show that established promotional policies or procedures were not followed or applied fairly,” since “management retains the exclusive right to manage the affairs and operations of City government.” POP # 6, §§ 2,3(a)(4).

The threshold inquiry into whether a complaint is “grievable” determines whether the employee is entitled to proceed on the path toward review and resolution of the merits of her or his complaint.

Virginia has long-established rules by which courts test the sufficiency of factual allegations to determine whether, in a civil suit, a plaintiff has stated a claim upon which relief can be granted. The Supreme Court has at least implied that these standards apply to a review of a public school teacher’s grievance, see York County School Board v. Epperson, 246 Va. 214, 220-22, 435 S.E.2d 647 (1993), and I am of opinion that the same standards appropriately are applied when considering whether a municipal employee states a claim for which relief can be granted in grievance proceedings: To state a claim that is grievable, the employee must allege facts from which a right to relief can be inferred; conclusoiy statements (for example, statements that a particular rule, regulation, or procedure was violated) are insufficient. See Epperson, id. The employee’s factual assertions must be treated as true, the employee must be given the benefit of all inferences that fairly can be drawn from the facts alleged; one must also assume the truth of all assertions of fact that can be “fairly and justly inferred” from the employee’s complaint. However, the employee is not entitled to the assumption that his or her legal theories are correct. See Breeding v. Hensley, 258 Va. 207, 211-12, 519 S.E.2d 369 (1999); Runion v. Helvestine, 256 Va. 1, 7, 501 S.E.2d 411 (1998); Ward’s Equipment, Inc., v. New Holland North Am., Inc., 254 Va. 379, 383, 493 S.E.2d 516 (1997); Perk v. Vector Resources Group, Ltd., 253 Va. 310, 485 S.E.2d 140 (1997); Rosillo v. Winters, 235 Va. 268, 270, 367 S.E.2d 717 (1988).

In the “statement of grievance” that each of the three complaining officers filed, she or he wrote that “the basis for the complaint is a violation of Police Department Operational Directive # 2.3.3, Section II, Part C (Promotions), as a result of failing to follow promotional policy. Also, I contend that Operational Directive # 2.3.3, Section HI, Part B (Procedures), was unfairly [612]*612applied with regards to the promotional procedure.” Each statement of grievance was followed by a “summary of details.”

The record in each case was duly transmitted to the court and has been filed without objection. The court is to decide these cases based on the record, supplemented by any other evidence that the court in its discretion determines the ends of justice require. POP # 6, § 5(c). The parties relieved me of any need to make this determination. At a hearing on August 24,2001, documents were admitted in evidence without objection, and each party accepted the opposing party’s proffer of evidence, that is, each agreed that the opposing party would present the evidence that the party’s attorney proffered. The parties stipulated that the documents and proffered testimony are in evidence, for whatever weight and consideration the court determines to give them. With his post-hearing legal argument, counsel for the officers submitted affidavits (with attachments) from each of the grievants and an affidavit from a former police officer. Agreeing with the City, I have not considered this material.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ferguson v. City of Chesapeake
92 Va. Cir. 180 (Chesapeake County Circuit Court, 2015)
Clark v. Roanoke County
89 Va. Cir. 228 (Roanoke County Circuit Court, 2014)
Brito v. City of Norfolk
81 Va. Cir. 340 (Norfolk County Circuit Court, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
63 Va. Cir. 609, 2001 Va. Cir. LEXIS 512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drewery-v-city-of-roanoke-vaccroanokecty-2001.