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Virginia Department of Alcoholic Beverage Control v. Tyson

Court of Appeals of Virginia

May 27, 2014

VIRGINIA DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL
v.
DON C. TYSON

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND. Clarence N. Jenkins, Jr., Judge.

Ronald R. Regnery, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Wesley G. Russell, Jr., Deputy Attorney General; Guy W. Horsley, Jr., Special Assistant Attorney General, on briefs), for appellant.

Darry A. Parker for appellee.

Present: Chief Judge Felton, Judges Kelsey and Petty. OPINION BY JUDGE D. ARTHUR KELSEY.

OPINION

Page 90

[63 Va.App. 420] D. ARTHUR KELSEY, JUDGE.

The Virginia Department of Alcoholic Beverage Control (the " agency" ) fired Don C. Tyson in 2012. Tyson exhausted his grievance remedies afforded by the State Grievance Procedure, Code § 2.2-3000 et seq. On appeal, the circuit court reversed the administrative hearing officer's decision, which upheld the agency's decision to terminate Tyson, on the ground that the agency violated Tyson's procedural due process rights. Finding no legal basis for that conclusion, we reverse the circuit court's holding and reinstate the hearing officer's decision.

I.

Ordinarily, an appellate court recites the facts in the light most favorable to the prevailing party in the circuit court. " In cases involving administrative review of state employee grievances, however, the light-most-favorable rendition of the facts is inapt." Va. Dep't of Transp. v. Stevens, 53 Va.App. 654, 658, [63 Va.App. 421] 674 S.E.2d 563, 565 (2009). The facts of this case came before the circuit court, as they do to us, " on the record" developed in the agency proceedings. See Code § 2.2-3006(B). " In reviewing agency factfinding, a circuit court acts much like an appellate court -- reviewing the facts developed in the agency record in the light most favorable to the party prevailing in that forum and deferring to agency factfinding unless patently insubstantial." Stevens, 53 Va.App. at 658, 674 S.E.2d at 565 (citing Va. Dep't of Corr. v. Compton, 47 Va.App. 202, 217-18, 623 S.E.2d 397, 404 (2005)). On further appeal to us, we apply the same standard.

In 2012, Tyson worked as a project manager for the agency. He was fired after receiving

Page 91

multiple disciplinary notices for various things, such as " abuse of state time," the " failure to follow supervisory instructions," and " poor job performance." App. at 4, 6, 73. The specific process that led to his dismissal began with a meeting with his supervisor who counseled Tyson about a poorly written and inaccurate letter that he sent to an agency consultant. The supervisor instructed Tyson to take certain remedial measures, but he failed to comply fully with her instructions.

Subsequently, on April 4, 2012, the agency issued to Tyson a " Memorandum of Pending Disciplinary Action." Id. at 2. The memo advised Tyson that his supervisor had recommended disciplinary action against him and explained in detail her basis for doing so. The memo ended with the statement: " In an effort to provide you with due process, you are given 48 hours to respond in writing to the charge listed above. This is your opportunity to provide any comments you wish to add concerning these incidents before the disciplinary action is issued." Id. at 3. Tyson signed the memo, acknowledging that he personally received it on April 4, 2012.

Two days came and went without any oral or written response to the memo by Tyson. Approximately two weeks later, on April 20, 2012, the agency issued two written disciplinary notices to Tyson. The second of the two notices terminated Tyson's employment effective April 23, 2012. The [63 Va.App. 422] notices informed Tyson of his rights under the agency's grievance procedure. Tyson responded to the notices with a " Grievance Form A -- Expedited Process" and a detailed written statement attached explaining his ...


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