722 S.E.2d 684
Va. Ct. App.2012Background
- Burke was employed as Administrative and Office Specialist II at Catawba Hospital and responsible for clerical tasks including typing doctors' dictated notes for patient care decisions.
- On August 26, 2010, a doctor dictated recommendations for seven patients but none were transcribed within three days, delaying treatment and causing patient pain.
- Hospital found Burke violated Departmental Instruction 201 and issued a Group III written notice, leading to termination.
- Burke's grievance hearing concluded Burke did not violate DI 201 because her duties were clerical, resulting in a reduced disciplinary action to Group II with ten-day suspension and reinstatement.
- The Agency (Department of Behavioral Health and Developmental Services) sought review of the hearing officer’s interpretation of DI 201 to DHRM; DHRM issued a policy ruling reversing the interpretation and remanded for reconsideration.
- On remand, the hearing officer upheld the Agency’s disciplinary action, and Burke appealed to the circuit court which held it lacked jurisdiction to review the policy interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Circuit court jurisdiction over policy interpretation | Burke: court can review policy interpretation | Agency: only DHRM reviews policy; circuit lacks jurisdiction | Circuit court properly declined to review DHRM policy interpretation |
| Compliance with grievance procedures | Burke: Agency's failure to follow procedures violates §2.2-3000 and §7.2 | Procedural defects are handled by DHRM, not court; manual not 'law' | No reversal; procedural defects alone do not render decision contrary to law |
| Effect of failure to follow Grievance Procedure Manual as law | Burke asserts manual constitutes the governing law | Manual is procedural, not law; not reviewable as 'contrary to law' | Manual not 'law'; failure to follow it not reversible error |
| Impact of agency not seeking administrative hearing after Feb. 7, 2011 decision | Burke argues this inaction affects the decision | Burke fails to identify governing law; fails to demonstrate reversible error | Assignment deemed procedurally defective and not reviewable |
Key Cases Cited
- Virginia Dep't of State Police v. Barton, 39 Va.App. 439 (2002) (tripartite review; narrow 'contrary to law' standard)
- Commonwealth v. Needham, 55 Va.App. 316 (2009) (appeals from policy interpretations go to DHRM director)
- Va. Polytechnic Inst. & State Univ. v. Quesenberry, 277 Va. 420 (2009) (interpretation of policy is a matter of law review)
- Louis Latour, Inc. v. Va. Alcoholic Bev. Contr. Bd., 49 Va.App. 758 (2007) (de novo review of questions of law)
- Kondaurov v. Kerdasha, 271 Va. 646 (2006) (law of the case concept; not applicable here)