Antonio Passaro, Jr. v. Virginia Department of State Police
67 Va. App. 357
| Va. Ct. App. | 2017Background
- Antonio Passaro, a VDSP special agent in the High Tech Crimes Unit, was disciplined for handling a May 2012 "knock and talk" investigation in which he turned a seized computer over to an ICE agent, failed to complete VDSP evidence paperwork, and told the computer owner there would be no prosecution without consulting the Commonwealth's Attorney.
- Passaro had a prior Group II Written Notice from July 28, 2010; VDSP issued a second Group II Written Notice (and terminated him) on March 27, 2013 based on accumulation of two active Group II notices.
- Medical evidence showed Passaro suffered PTSD from repeated exposure to child-pornography images; physicians advised limiting such exposure, but Passaro continued in the High Tech Crimes Unit and later completed investigations that formed the basis of discipline.
- Passaro filed an employee grievance; the hearing officer upheld the March 27, 2013 Group II notice and removal. DHRM/EDR issued administrative reviews and policy rulings upholding the hearing officer. Circuit court affirmed after remand; this appeal followed.
- Passaro raised multiple challenges: insufficiency of record/credibility findings, reliance on an expired prior Group II notice, unlawful retaliation/abusive supervision, failure to follow VDSP transfer-review policy, and VDSP’s refusal to mediate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence / credibility | Hearing officer gave improper weight to supervisor Holland and improperly discounted Agent Wolpert; decision lacks record support | Hearing officer is the factfinder; credibility determinations are factual and not subject to judicial review | Court declined to review credibility findings; plaintiff failed to show decision was "contradictory to law" |
| Reliance on prior Group II notice as basis for removal | Prior Group II (7/28/2010) expired after three years and thus could not support accumulation for removal when decision issued in Sept. 2013 | DHRM policy treats a prior notice as "active" if it was active on date the second notice was issued (March 27, 2013); accumulation valid | Policy determination by DHRM controls; courts will not review agency policy interpretation absent contradiction to law |
| Retaliation / abusive supervision | Agency discipline was motivated by retaliation and abusive conduct; hearing officer ignored unrebutted evidence | Agency acted to address legitimate performance and policy violations | Court held these are factual/policy matters outside judicial review under Code § 2.2-3006(B) |
| Transfer request review under VDSP General Order ADM 6.00(16) | Agency failed to "carefully review" transfer requests as required by its general order | Alleged misapplication of internal transfer policy; decisions about agency policy are for DHRM/agency | Court refused to review alleged violation of internal transfer policy; not "contradictory to law" |
| Mediation refusal (Code § 2.2-3000) | VDSP unlawfully refused to mediate; refusal requires reversal of termination | Participation in EDR mediation program is required, but actual mediation is voluntary; agency need not mediate every requested dispute | Court held statute does not compel forced mediation; voluntary program means refusal to mediate is not "contradictory to law" |
Key Cases Cited
- Va. Dep’t of State Police v. Barton, 39 Va. App. 439, 573 S.E.2d 319 (2002) (hearing officer is factfinder; credibility and agency general orders are not subject to judicial review under grievance statute)
- Va. Polytechnic Inst. & State Univ. v. Quesenberry, 277 Va. 420, 674 S.E.2d 854 (2009) (courts’ review in grievance appeals is limited to whether administrative decision is contradictory to law)
- Va. Dep’t of Corr. v. Compton, 47 Va. App. 202, 623 S.E.2d 397 (2005) (same standard of review on administrative grievance appeals)
- Pound v. Dep’t of Game & Inland Fisheries, 40 Va. App. 59, 577 S.E.2d 533 (2003) (legal issues in grievance appeals reviewed de novo)
- Osburn v. Va. Dept. of Alcoholic Beverage Control, 67 Va. App. 1, 792 S.E.2d 276 (2016) (distinguishable—case allowed judicial review where grievance decision necessarily involved interpretation of Fourth Amendment law)