Diaz-Gandia v. Dapena-Thompson

• Decision Date: 27 February 1996
• Docket Number: No. 95-2005,P,DAPENA-THOMPSON,DIAZ-GANDI,95-2005
• Citation: 90 F.3d 609
• Parties: 152 L.R.R.M. (BNA) 2919, 132 Lab.Cas. P 11,635 Stanleylaintiff, Appellant, v. Maria Rosa, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 609

90 F.3d 609

152 L.R.R.M. (BNA) 2919, 132 Lab.Cas. P 11,635

Stanley DIAZ-GANDIA, Plaintiff, Appellant, v. Maria Rosa DAPENA-THOMPSON, et al., Defendants, Appellees.

No. 95-2005.

United States Court of Appeals First Circuit.

Heard Feb. 27, 1996.

Decided July 25, 1996.

Rafael A. Oliveras Lopez de Victoria, for appellant.

Lorraine J. Riefkohl, Assistant Solicitor General, with whom Carlos Lugo-Fiol, Solicitor General, and Jacqueline Novas-Debien, Deputy Solicitor General, were on brief, for appellees.

Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

This appeal challenges a summary judgment dismissing various claims brought under the Veterans' Reemployment Rights Act of 1968 ("VRRA") against the Right to Work Administration of the Commonwealth of Puerto Rico ("RWA") for allegedly denying plaintiff-appellant Stanley Xavier Diaz Gandia ("Diaz") certain incidents and advantages of employment solely by reason of his participation in the United States Army Reserves. We vacate the district court judgment and remand for further proceedings.

I BACKGROUND ¹

Appellant Diaz, who possesses a Bachelor's Degree in Psychology and a Masters Degree in Vocational Counseling, was hired by defendant-appellee RWA in August 1980, as an Occupational Counselor I in its Bayamon Regional Office. During the next few years he was promoted and transferred several times before attaining the classification of Personnel Relations Counselor, equivalent to Occupational Counselor III, at the Central Office in San Juan.

In September 1986 Diaz enlisted in the United States Army and entered on active duty for approximately nine months, receiving military leave pay from the RWA as required by Puerto Rico law. P.R. Laws Ann. tit. 25 § 2082. Following his honorable discharge in May 1987, he became an active reservist with the 448th Engineer Battalion at Fort Buchanan, which meant that he remained on paid military leave from the RWA until July 1987.

When Diaz reported for duty with the RWA at its Central Office following his return from active duty with the Army Reserves, he discovered that a person with inferior educational qualifications and experience had been assigned to fill his position. Nevertheless, as directed, Diaz reported for work as an Occupational Counselor III in the San Juan Regional Office, located in the same building, where for one month he was assigned to a cubicle filled with boxes and office supplies but no desk or chair. He complained to the Office of Reservist and Veteran's Affairs, and, in March 1988, to the Board of Appeals of the Commonwealth Personnel Administration System, all to no avail. Approximately two months later, a complaint to the Employee's Association resulted in his reassignment to the Central Office as a Counselor in the Business Development Area.

In addition, Diaz was reprimanded unjustly by his supervisors on two occasions upon his return from military leave. First, he states that the Director of the San Juan Regional Office, Aida Iris Castro Mundo, informed him that he wasted a lot of time on military exercises. Following their meeting, Diaz received a letter from Castro Mundo, dated April 15, 1988, advising that he needed to improve his job performance in light of the fact that he had: delayed assigning cases to other counselors; refused to receive cases after 3:30 p.m.; frequently absented himself from his workplace during office hours; failed to complete cases on time; and either failed to perform, or performed poorly, various other official responsibilities. Diaz denies these accusations. Second, at his deposition Diaz testified that he had been reprimanded unfairly by another supervisor, Jose Figueroa, for not being at his work station during the middle of a day following his return from military training. He explained his four-hour absence on that occasion as having been devoted to making sure the RWA paid him for the time he was on military leave. Diaz further states that he received no job description until July 1994, despite a promise six years earlier that he would receive one, and that his supervisors harassed him by evaluating his work performance absent a job description.

No other negative job evaluation appears in Diaz' personnel record. Nonetheless, and though in June 1988 he had been designated a Counselor of Special Projects in the Central Diaz testified that his desk and belongings were relocated four times before or during military leaves in 1991 alone, though there was no change in work duties. For example, in July 1991, without warning and after submitting a request for military leave, his desk was set apart from co-workers until he complained to his supervisor. When he returned from military leave the following month, however, his desk had been removed to the Training Division on the same floor. Diaz was told by the supervisor that this was a temporary measure, necessitated by a remodeling project. But when he returned from leave again in September 1991, after the remodeling had been completed, his desk had been relocated again, this time to the Payment Division. Once again he was told by his supervisor that the move was temporary. Upon his return from military leave in November 1991, his desk was located in the Learning Program Division, ostensibly as an emergency measure related to space problems.

Office as he requested, Diaz testified that Supervisor Fernando Freses made him uncomfortable with jokes about the military and its exercises, and that he so informed Freses. When asked on deposition whether it was a joke, Diaz replied: "It was like a joke, but I did not know what that would lead to. Because maybe behind the words, well, there could be other intentions...."

The remodeling plans for the Communal Development Division included no work station for Diaz, even though work stations were provided for two co-workers who had arrived after Diaz. ² As a consequence, Diaz remained in the Learning Program Division until the end of May 1992. Finally, unlike all his co-workers in the Learning Program Division and in the Communal Development Division, Diaz was not provided a telephone. Supervisor Jose Figueroa explained to Diaz in March 1992: "Oh, you do not have a telephone because the day the telephone company operator came you were in [sic] one of these [sic] damn military leaves of yours." In late March 1992, Diaz complained to his supervisor that all his work duties had been reassigned to others.

Around the same time, he complained of migraine headaches and the State Insurance Fund ordered home rest from April 10 to May 18, 1992. Upon returning from medical leave, Diaz was given no work assignment for approximately two weeks. The following month he was transferred to the Participant Services Division in the Central Office, located on the tenth floor of the same building. After protesting the transfer and requesting administrative review, he reported as directed to the Participant Services Division upon returning from another military leave and was informed that there was no work for him to do. Approximately one week later, having been given no work assignment, he complained to the State Insurance Fund that he was experiencing insomnia, headaches and neck and back pain. A private psychiatrist prescribed two weeks' rest. Subsequently, another psychiatrist evaluated Diaz, concluding that he suffered from dysthymia with anxiety somatization. ³

On August 6, 1992, having been assigned no work for five consecutive weeks, during a ten-week period, Diaz received a copy of a letter, dated July 24, 1992, from the manager of Participant Services to the director of Occupational Orientation, advising that Diaz should be given work as an Occupational Counselor, at an unspecified grade level. Only then was he given work duties. In September 1992, he was instructed to "read" a 200-page statute in three days, but found the task too demanding as he had been prescribed Prozac, then "something else with a lithium base," and finally Xanac, by his psychiatrist. At Diaz' request, the director of Occupational Orientation later reduced the assignment to twenty-five pages per day. Diaz testified that other incidents also made him "feel very bad because ... all this mess, of the Army Reserve and the drills, this was On July 16, 1993, Diaz filed suit against defendants-appellees Maria Rosa Dapena-Thompson and her successor, in their respective official capacities as the RWA director, alleging that he had been harassed, denigrated, and persecuted after returning from military leave for required training and drills with his reserve unit. He demanded damages for mental and emotional suffering, as well as reclassification in accordance with RWA rules and regulations. Shortly after filing the complaint, Diaz was promoted to Occupational Counselor IV, the highest grade he has ever attained.

all going to continue. And this was going to be a nightmare until I left the Army or until I left this agency, this was going to continue."

In due course, defendants moved for summary judgment on the ground, inter alia, that there was no trialworthy dispute concerning whether defendants had discriminated against Diaz in violation of the VRRA. Diaz seasonably interposed opposition to the motion for summary judgment. Thereafter, the parties stipulated to certain uncontested facts and consented to proceed to final judgment before a magistrate judge in accordance with 28 U.S.C. § 636(c)(1) and (3) and Fed.R.Civ.P. 73. Ultimately, the magistrate judge entered summary judgment for both defendants.

II DISCUSSION ⁴

The VRRA is to be liberally construed. Alabama Power Co. v. Davis, 431 U.S. 581, 584, 97 S.Ct. 2002, 2004-05, 52 L.Ed.2d 595 (1977); Bunnell v. New England Teamsters & Trucking Indus. Pension Fund, 655 F.2d 451, 453 (1st Cir.1981), cert. denied, 455 U.S. 908, 102 S.Ct. 1253, 71 L.Ed.2d 446 (1982). VRRA § 2021(b)(3) provides in pertinent part...