In 2023, Wesley Shifflett, a police officer with the Fairfax County Police Department in Virginia, shot and killed Timothy McCree Johnson outside of the Tysons Corner Center Mall. Johnson was suspected of shoplifting. As Shifflett gave chase, Shifflett alleged, Johnson “quickly stopped his flight, turned towards Shifflett, dropped into a defensive stance, and reached for his waistband.”
About a month later, Shifflett was informed via memo that he was being terminated. The memo explained that the shooting and Shifflett’s “personal conduct, specifically his inconsistent articulation and lack of forthcoming answers to questions, in totality have failed to meet the expected standards required for continued employment with the Fairfax County Police Department.” Shifflett received a second memo a week later affirming the termination and giving more specificity to the stated reasoning. Shifflett filed a grievance soon after under the County grievance procedure established in Chapter 17 of the Fairfax County Personnel Regulation, arguing that he was given neither proper notice nor justification for his termination.
Shifflett began to argue that the Department failed to comply with the grievance procedure after the Step One meeting, asserting that he had not been provided with key documents and the meeting was conducted without his immediate supervisor present. To the County Executive, Shifflett added arguments that he’d been denied due process rights under Loudermill, that the County had failed to comply with Virginia’s Law Enforcement Officers Procedural Guarantee Act, and that the County had failed to follow its employee discipline code. The County Executive responded only that the Department had complied with the grievance procedure, and that the other arguments were beyond its authority to consider.
Shifflett appealed to the circuit court, where the decision of the County Executive to limit the scope of its review was affirmed. The circuit court, too, limited its review to compliance with the grievance procedure. From here, Shifflett appealed again.
The Virginia Court of Appeals affirmed the decision of the circuit court: “It is true that an employee who asserts a grievance is entitled not only to certain statutory protections spelled out in the grievance process, but also to certain constitutional protections. But it is well-established that the ‘elaborate statutory grievance procedures’ instituted by the General Assembly ‘more than satisfy the minimal requirements of due process.’ Thus, a grievant can seek immediate review of whether a party has failed to ‘comply with all substantial procedural requirements of the grievance procedure without just cause.’ In other words, the chief administrative officer may consider only whether the parties have substantially complied with the procedural requirements listed in the grievance procedure, and if not, whether there was just cause to excuse the failure.
“The statutory process by which an employee can advance various grievances is distinct from the merits of those underlying grievances. Here, Shifflett’s arguments that the Department violated his constitutional and statutory rights by terminating him and that his termination also violated the Department’s personnel apolicies, are all complaints about the merits of his termination – they are not about the process the Department has followed in reviewing his complaints. Because they are outside the bounds of the grievance procedure, they are also beyond the chief administrative officer’s consideration.”
Shifflett v. Hill, Record No. 1357-23-4, LEXIS 582 (Va. Ct. App. 2024).