Hickman v. Va. Commonwealth Univ.
Hickman v. Va. Commonwealth Univ.
2004 WL 435846 (Va. Cir. 2004)
March 5, 2004
Johnson, Randall G., Judge
Summary
Electronically stored information was used to prove that Doris Hickman had sent emails without permission from the president's office, which was a violation of her job description. The hearing officer considered the emails and other ESI in making his decision, which was ultimately affirmed by the court.
Doris HICKMAN
v.
VIRGINIA COMMONWEALTH UNIVERSITY
v.
VIRGINIA COMMONWEALTH UNIVERSITY
No. CH04-177-4
Circuit Court of Virginia, City of Richmond
March 05, 2004
Johnson, Randall G., Judge
Opinion
Dear Counsel:
*1 The court has considered the parties' written submissions and the oral argument on Monday. While the court disagrees with Virginia Commonwealth University's (“VCU”) argument that the factual findings of a hearing officer can never be challenged, even if such factual findings have absolutely no support in the record, the court concludes that the hearing officer's decision in this case is correct.
Essentially, the hearing officer found that VCU did not act improperly in giving the appellant, Doris Hickman, a Group III Notice and terminating her from her employment as an administrative staff assistant in the president's office. The Group III Notice and termination were for appellant's having sent, without the president's or anyone else's permission, emails addressed to the president to persons outside the president's office. Not only was this something that even the most novice secretary or administrative assistant should have known was improper without being told, the hearing officer specifically found that:
Grievant was trained at the time of hire that communications in the president's office are frequently sensitive and must be treated confidentially. This policy was reinforced from time to time during staff meetings. The training stressed that communications and other information in the president's office should be distributed only as instructed and only on a need-to-know basis. Grievant's job description requires her to maintain confidentiality on all University-related matters.
Hearing Officer's Decision of December 15, 2003, at 3 (footnotes omitted).
Appellant's challenge to the hearing officer's decision is three-fold. First, she argues that the specific charge against her-“Unauthorized removal of state records, state property, and the property of other persons and breaches of confidentiality”-is invalid because one cannot “remove” email. The court disagrees. While it is true that the original emails remained on the office computer after they were sent by appellant to others, copies of those emails were “removed” when appellant forwarded them out of the office. Moreover, even if the court is wrong-and the court certainly does not profess to be an expert in the field of computers or computer terminology-and emails are not technically “copied” or “removed” when they are forwarded or sent to someone other than the addressee, the charge against appellant also included “breaches of confidentiality.” Whatever the correct terminology might be for what appellant did with the president's emails, it was a breach of confidentiality. Appellant's argument on this point is rejected.
The court also rejects appellant's second ground for reversal: the hearing officer's admitting into evidence the fact that appellant had made a false statement in her employment application. Specifically, appellant said in her application that she had never been convicted of a felony when, in fact, she had been. Appellant contends that since the Group III Notice for which she was terminated did not charge her with falsifying her employment application, any consideration of such falsification by the hearing officer was improper. As the hearing officer pointed out, however, a hearing officer must consider “all circumstances-both mitigating and aggravating-in determining whether the discipline meted out by an agency is commensurate with the offense.” Hearing Officer's Decision on Reconsideration dated December 29, 2003, at 4. The admission of the false statement in the application was proper.
*2 Lastly, appellant argues that the hearing officer's decision should be reversed because he allowed into evidence two “Written Counselings” offered by VCU as aggravating circumstances. It is appellant's positions that the counselings were not reprimands or otherwise disciplinary in nature and should not have been considered. Again, however, the hearing officer was required to consider all relevant circumstances in deciding whether VCU's action in issuing the Group III Notice and in terminating appellant was appropriate, and the written counselings were part of those circumstances. It was entirely appropriate for him to admit them into evidence.
Finding no error in the hearing officer's decision, it will be affirmed. A copy of an order is enclosed.