Phanendharnadh L.N. Kone v. Virginia Department of State Police

• Court: Court of Appeals of Virginia
• Decided: November 24, 2009
• Docket: 0974092
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Alston and Senior Judge Coleman

PHANENDHARNADH L. N. KONE MEMORANDUM OPINION * v. Record No. 0974-09-2 PER CURIAM NOVEMBER 24, 2009 VIRGINIA DEPARTMENT OF STATE POLICE

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Michael C. Allen, Judge

(Phanendharnadh L.N. Kone, pro se, on briefs).

(William C. Mims, Attorney General; Maureen Riley Matsen, Deputy Attorney General; Peter R. Messitt, Senior Assistant Attorney General; Ronald N. Regnery, Senior Assistant Attorney General, on brief), for appellee.

Phanendharnadh L.N. Kone, appellant, appeals a decision of the trial court affirming the

decision of the hearing officer under the grievance procedure for state employees and dismissing

appellant’s appeal thereof. On appeal, appellant argues: (1) the trial court erred by not finding that

the hearing officer’s decision was contradictory to law; (2) numerous documents admitted at his

hearing were forged or falsified; and (3) his supervisors at the Virginia Department of State Police

(VDSP) were not qualified or competent to assess his skills. Upon reviewing the record and briefs

of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the

decision of the trial court. See Rule 5A:27.

Appellant was formerly employed by the VDSP as a senior programmer/analyst. After

receiving complaints about his work, appellant’s supervisors met with him on several occasions to

discuss his work performance issues. In August 2008, appellant received a Group II Written Notice

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. for “[f]ailure to follow a supervisor’s instructions, perform assigned work or otherwise comply with

applicable established written policy.”

Appellant challenged the issuance of the Group II Written Notice through the state

employee grievance procedure. See Code § 2.2-3000 et seq. After an evidentiary hearing, the

hearing officer found the VDSP met its burden of proof regarding the issuance of the Group II

Written Notice. Appellant requested reconsideration of the hearing officer’s decision, which was

denied.

Appellant appealed his case to the trial court. In its order entered on April 8, 2009, the trial

court found that appellant had “failed to reference, cite and/or otherwise identify any statute (and/or

other legislation), judicial precedent and/or accepted legal principle in support of his claim that the

decision of the hearing officer was ‘contradictory to law’-- as required by Code § 2.2-3006(B) for

the reversal of that decision.” The trial court dismissed the appeal and affirmed the decision of the

hearing officer. Appellant appealed the trial court’s decision to this Court.

[A] party appealing from a hearing officer’s decision to a circuit court is required to “specify how that decision [was] ‘contradictory’ to law and what ‘law’ [was] thereby being contradicted.” The appealing party must “identify [a] constitutional provision, statute, regulation or judicial decision which the [hearing officer’s] decision contradicted.”

Virginia Polytechnic Inst. and State Univ. v. Quesenberry, 277 Va. 420, 429, 674 S.E.2d 854,

858 (2009) (citations omitted).

The General Assembly has articulated a very narrow standard of review to be applied by the circuit court in such appeals. Because this standard focuses solely on the question whether the hearing officer’s decision is contradictory to any applicable law, the party appealing the hearing officer’s decision properly bears the burden of identifying the law thereby contradicted.

Id.

-2- “‘Law’ is the ‘aggregate of legislation, judicial precedents and accepted legal

principles.’” Virginia Dep’t of State Police v. Barton, 39 Va. App. 439, 446, 573 S.E.2d 319,

323 (2002) (quoting Black’s Law Dictionary 889 (7th ed. 1999)).

In the document appellant filed in the trial court entitled “Reply to Agency’s Memorandum

of Law in Opposition to Grievant’s Appeal,” appellant stated, generally, “[t]he decision of [the]

hearing officer is ‘contradictory to law.’” However, appellant did not “specify how that decision

[was] ‘contradictory’ to law and what ‘law’ [was] thereby being contradicted.” Quesenberry,

277 Va. at 429, 674 S.E.2d at 858 (quoting Tatum v. Virginia Dep’t of Agric., 41 Va. App. 110,

122, 582 S.E.2d 452, 458 (2003)). As in Quesenberry, appellant “failed to identify to the trial

court any applicable constitutional provision, statute, regulation, or court precedent of this

Commonwealth that the hearing officer contradicted.” Id.

In addition, the issues appellant raised on appeal to the trial court involved evidentiary

materials, witness competency and credibility matters, and the hearing officer’s findings of fact, all

of which were beyond the scope of review of the trial court pursuant to Code § 2.2-3006(B). “[T]he

only grounds of appeal of the hearing officer’s decision is ‘that the determination is contradictory

to law.’” Barton, 39 Va. App. at 445, 573 S.E.2d at 322 (quoting Code § 2.2-3006(B)). The

hearing officer’s decision is final and binding ‘if consistent with law and policy.’ Code

§ 2.2-3005.1(C)(iii).” Quesenberry, 277 Va. at 428, 674 S.E.2d at 858. “[B]ecause [appellant]

failed to identify any applicable law that was contradicted by the hearing officer’s decision,

[appellant]’s appeal to the circuit court failed from its inception.” Id. at 430, 674 S.E.2d at 859.

Appellant also requests that we remand this case to the trial court for an award of costs

pursuant to Code § 2.2-3006(E). Code § 2.2-3006(E) provides that a court shall award an

employee reasonable attorney’s fees and costs if the employee “substantially prevails on the

-3- merits of a case brought under subsection B or D.” Appellant has not substantially prevailed on

the merits of the case. Therefore, we deny appellant’s request.

Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.

Affirmed.

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