Issue: Compliance; Conduct of Hearing, Hearing Decision; Ruling Date November 7, 2001; Ruling #2001-166; Agency: Virginia State University; Outcome: In compliance hearing officer.

In the matter of Virginia State University

Ruling Number 2001-166

November 7, 2001

The grievant has requested a compliance ruling in the grievance that he initiated with Virginia State University (VSU). The grievant claims that the hearing officer abused his discretion by (i) failing to order the agency to produce documentation regarding a departmental restructuring at hearing, (ii) improperly considering witness testimony regarding the document, and (iii) basing his decision, in part, on the document.

The grievant was employed by VSU until his resignation on February 28, 2001. On December 5, 2000, upper management met with the grievant during the investigation of another employee’s grievance. Subsequently, on January 5, 2001, the grievant was reassigned to the Patrol Division, though without any formal discipline. On February 1, 2001, the grievant filed his grievance alleging that he had been reassigned in retaliation for his participation in the grievance process. The grievance advanced through the management resolution steps, and on July 25, 2001, the Director of this Department qualified the grievance for a hearing. The hearing officer conducted a hearing on August 23, 2001 and rendered his decision on August 24, 2001. In his decision, the hearing officer concluded that the grievant failed to establish by a preponderance of the evidence that the agency retaliated against him.

By statute, this Department has been given the power to establish the grievance procedure, promulgate rules for conducting grievance hearings, and "[r]ender final decisions in all matters related to procedural compliance with the grievance procedure."¹ If the hearing officer’s exercise of authority is not in compliance with the grievance procedure, this Department does not award a decision in favor of a party; the sole remedy is that the action be correctly taken.²

The grievance hearing is an administrative process that envisions a more liberal admission of evidence than a court proceeding. ³Accordingly, the technical rules of evidence do not apply, and hearsay evidence, if probative, ⁴may be admitted and considered by a hearing officer.⁵ Where the evidence conflicts or is subject to varying interpretations, hearing officers have the sole authority to weigh that evidence, determine the witnesses’ credibility, and make findings of fact. As long as the hearing officer’s findings are based upon the record evidence and the material issues of the case, this Department cannot substitute its judgment for that of the hearing officer with respect to those findings.

The grievant asserts that during the hearing, the agency offered testimony regarding the Community Oriented Policing (COP) grant program but never introduced any supporting documentation regarding the program.⁶ The grievant also objects to the admission of testimony relating to the COP program based on the agency’s failure to disclose, prior to hearing, that it intended to introduce evidence regarding the COP program. The grievant also appears to contend that the hearing officer should have ordered the agency to produce copies of documentation relating to the COP program if he intended to allow testimony regarding the program.

In this case, the witness testimony, including the testimony regarding the COP grant, was deemed probative, and the hearing officer did not exceed or abuse his authority by considering it. In his decision, the hearing officer relied upon the testimony of the grievant and agency witnesses and weighed that evidence for reliability and trustworthiness in drawing inferences and reaching his determination. The hearing officer did not err when he allowed testimony relating to the COP program without insisting on the admission into evidence of documentation relating to the program. Such documentation may have been instructive; however, testimony regarding the program is relevant for another reason. In a case such as this, where the grievant alleges retaliation, a claim in which a party's state of mind or intent is crucial, "[r]esolution of questions of intent often depends upon ‘the credibility of the witnesses, which can best be determined by the trier of facts after observation of the demeanor of the witnesses during direct and cross-examination.’" ⁷Accordingly, it is not surprising that the hearing officer admitted testimony regarding the COP program, which the agency cited as the impetus for the grievant’s transfer.

As to the grievant’s assertion that testimony regarding the COP program should not have been permitted because the agency did not list documentation regarding the COP program as evidence that it intended to introduce at hearing, it should be noted the agency never moved for the admission of such documentation. The agency was not required to introduce documentary evidence relating to the COP program before it offered testimony regarding the same. The decision whether to admit such testimony falls within the broad discretion afforded the hearing officer.

The grievant’s challenges to the hearing officer’s decision, when examined, simply contest the weight and credibility that the hearing officer accorded to the testimony of the various witnesses at the hearing, the resulting inferences that he drew, the characterizations that he made, or the facts he chose to include in his decision. Such determinations were entirely within the hearing officer’s authority. As long as the hearing officer’s findings are based upon evidence in the record and the material issues of the case, this Department cannot substitute its judgment for that of the hearing officer with respect to those findings.

For the reasons discussed above, this Department finds that the hearing officer neither abuse his discretion in his conduct of the hearing nor exceeded his authority in deciding this case. This Department’s rulings on matters of compliance are final and nonappealable.⁸

Neil A.G. McPhie, Esquire
Director