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Passaro v. Virginia Department of State Police

Court of Appeals of Virginia

February 21, 2017


         FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Frederick B. Lowe, Judge Designate

          Kevin E. Martingayle (Bischoff Martingayle, P.C., on briefs), for appellant.

          Sydney E. Rab, Senior Assistant Attorney General (Mark R. Herring, Attorney General; Cynthia E. Hudson, Chief Deputy Attorney General; Rhodes B. Ritenour, Deputy Attorney General, Civil Division, on brief), for appellee.

          Present: Judges Humphreys, Beales and O'Brien Argued at Norfolk, Virginia



         Antonio Passaro, Jr. ("Passaro") challenges the judgment of the circuit court. The circuit court, sitting as an appellate court, affirmed the decision of the hearing officer in Passaro's employee grievance proceeding against his former employer, the Virginia Department of State Police ("VDSP"). Passaro contends that the circuit court (1) erred in finding that the decision of the hearing officer was supported by the record; (2) erred in denying Passaro's motion for reconsideration; (3) erred in "upholding the hearing officer's reliance on an expired 'Group II Written Notice' as part of the disciplinary record used to justify termination of Passaro"; (4) erred in "upholding the hearing officer's original decision that contradicted law and policy by failing to acknowledge and act upon unrebutted evidence of unlawful retaliation and abusive behavior"; (5) erred in "upholding the hearing officer's original decision that contradicted law and policy by failing to acknowledge [VDSP's] violations of General Order ADM 6.00(16)" regarding review of transfer requests; and (6) erred in "failing to award relief to Passaro based upon [VDSP's] repeated unlawful refusal to comply with mediation provisions set forth in Code § 2.2-3000." For the following reasons, we affirm the decision of the circuit court.

         I. Background

         Passaro was employed by VDSP for approximately fifteen years. In October 2008, Passaro began working in the High Tech Crimes Unit. The High Tech Crimes Unit investigates potential computer fraud, computer trespass, computer invasion of privacy, and theft of computer services, among other crimes. Relevant to this appeal, Passaro also investigated online child exploitation cases including the possession, manufacture, and distribution of child pornography. On July 28, 2010, Passaro received a Group II Written Notice[1] for failure to follow established written policy. Beginning in September 2010, Passaro began reporting to First Sergeant Robert Holland. First Sergeant Holland began to observe that Passaro was having difficulty processing his caseload. On March 22, 2011, First Sergeant Holland counseled Passaro about his "heavy reliance" on Federal Agent Paul Wolpert of Immigration and Customs Enforcement ("ICE") and advised Passaro to handle his own investigations.

         On February 21, 2012, VDSP issued to Passaro a "Notice of Improvement Needed/Substandard Performance." That notice advised Passaro, among other things, that he had failed to submit proper paperwork and documentation on multiple occasions and had failed to properly prepare for a meeting with a Commonwealth's Attorney. The improvement plan contained in that notice stated that Passaro needed to demonstrate greater autonomy and an ability to work efficiently without supervision. On February 22, 2012, Passaro and First Sergeant Holland spoke on the phone. Passaro told First Sergeant Holland that he believed that Holland had asked Passaro to sever ties with ICE. First Sergeant Holland told Passaro that was not his instruction. First Sergeant Holland then told Passaro that he did expect Passaro to work his cases from start to finish and told Passaro that his heavy reliance on ICE must cease. That same day, Passaro submitted a transfer request to another position within VDSP. On March 2, 2012, Passaro amended his transfer request to include two additional positions.

         On April 6, 2012, First Sergeant Holland met with Passaro and told him that he had turned over too many of his assigned cases to be completed by Agent Wolpert. First Sergeant Holland also stated that it was Passaro's responsibility to work his own cases and to only have ICE provide assistance when necessary. First Sergeant Holland informed Passaro that Passaro should obtain search warrants and seize evidence and then send it to the VDSP's laboratory for evaluation, as opposed to the ICE laboratory.

         On April 26, 2012, Passaro and Agent Wolpert conducted a "knock and talk" investigation at what was described by the hearing officer as "Mr. W.'s residence" in Chesapeake to investigate suspicious internet activity related to child pornography. On a computer found at that residence, the agents found a folder that contained "titles of images and videos that were indicative of child pornography." Passaro and Agent Wolpert informed "Mr. W." that they needed to take the computer and have it erased. Agent Wolpert took the computer to his laboratory to examine the contents of its hard drive. On May 3, 2012, ICE conducted an examination of the computer at the ICE lab and found only titles of files that seemed indicative that those files may have contained child pornography and adult pornography. ICE then removed the files, removed the file sharing software that was on Mr. W.'s computer, and ran a program to "wipe" the hard drive of the computer. Passaro retrieved the computer from Agent Wolpert on May 4, 2012. Passaro then returned the computer to Mr. W. When he did so, Passaro told Mr. W. that no prosecution would occur - without talking with the Commonwealth's Attorney about whether one would occur and despite not having any authority to determine whether a criminal prosecution was appropriate.

         Passaro wrote in his report on the "knock and talk" investigation that the titles of images and videos on the computer yielded information of evidentiary value. First Sergeant Holland had not previously been informed that Agent Wolpert would be assisting Passaro with this particular investigation. After Passaro filed his report, First Sergeant Holland developed several concerns: (1) that Passaro relinquished the seized computer to Agent Wolpert without completing the SP-165 form, (2) that the computer was returned to Mr. W. but there was no indication in writing from Passaro of what was found on the computer or if anything had been removed or deleted, and (3) that there was no court order granting Passaro the authority to destroy the evidence on the computer's hard drive. When First Sergeant Holland first asked Passaro how many images were found on the computer that day, Passaro stated he did not know because Agent Wolpert "handled that." On May 16, 2012, Passaro told First Sergeant Holland that the computer contained around 100 images of adult pornography and three titles of files that were indicative of child pornography - but no actual images of child pornography.

         On July 20, 2012, Dr. Susan Waller diagnosed Passaro with post traumatic stress disorder ("PTSD") as a direct result of repetitive exposure to psychologically traumatic images of child pornography - a requirement of his job with the High Tech Crimes Unit of VDSP. Dr. Waller recommended not exposing Passaro to child pornography at work. On September 12, 2012, Dr. Waller reevaluated Passaro and came to the conclusion that Passaro was once more "fit for full duty" after having completed a leave of absence as long as he did not resume his investigations involving child pornography. Passaro nevertheless resumed working in the High Tech Crimes Unit. On November 20, 2012, Dr. Brian Wald drafted an evaluation of Passaro after subjecting him to psychological testing for PTSD. Based on that evaluation, Dr. Wald concluded that Passaro "is not currently able to perform as a Special Agent in the State Police" because the High Tech Crimes Unit "is an emotional trigger for his distress and may continue to cause PTSD reactions."

         On February 11, 2013, Passaro requested formal mediation of the issues related to his employment. In a February 14, 2013 letter responding to Passaro's counsel, VDSP declined to mediate with Passaro, citing an "active administrative investigation concerning Special Agent Passaro" that was underway at that time. On March 27, 2013, VDSP issued Passaro a Group II Written Notice for failing to follow instructions and/or policy related to his actions during the "knock and talk" investigation in Chesapeake. The written notice alleged:

During the investigation of computer child pornography, you failed to properly document the seizure of evidence (custody chain), failed to record the seized computer as evidence, and relinquished the evidence to ICE Agent Wolpert without authorization or documentation. You spoke independently and prematurely with [the computer owner] that "there would be no criminal charges filed" without approval from the Commonwealth Attorney's Office. These actions constitute a violation of General Order ADM 12.02, paragraph 12 b (I); to-wit, failure to follow a supervisor's instructions, perform assigned work or otherwise comply with applicable established policy (Group II Offense).

         As of the date of the issuance of that notice, Passaro had a prior active disciplinary action - a Group II Written Notice dated July 28, 2010 for failure to follow established written policy. Passaro was terminated on March 27, 2013.[2] On April 3, 2013, Passaro again requested formal mediation. On April 11, 2013, VDSP responded and again declined to mediate with Passaro, citing Passaro's termination from the State Police.

         Passaro then initiated an employee grievance action, which is the subject of this appeal. After a two-day hearing, the hearing officer concluded, "The Agency has presented sufficient evidence to support the issuance of a Group II Written Notice. [Passaro] has a prior active Group II Written Notice. Upon the accumulation of two active Group II Written Notices, an agency may remove an employee. Accordingly, [Passaro's] removal must be upheld." On November 6, 2013, the administrative review opinion of the Office of Employment Dispute Resolution ("EDR") of the Department of Human Resources Management ("DHRM") concluded there was no cause to disturb the decision of the hearing officer. On November 15, 2013, the policy ruling of DHRM concluded it had no basis to interfere with the decision of the hearing officer.

         Passaro then appealed to the Circuit Court of the City of Chesapeake, and VDSP cross-appealed. On June 9, 2014, the circuit court overruled and dismissed the entirety of VDSP's cross-appeal. The circuit court also overruled and dismissed Passaro's assignments of error, with one exception. The circuit court remanded the matter back to the hearing officer for "further consideration of the testimony offered by Special Agent Wolpert and factual determinations, if any, as a result. Upon remand and ...

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