Ornellas v. Lammers

• Decision Date: 01 April 1986
• Docket Number: Civ. No. 85-343-D.
• Parties: Robert J. ORNELLAS v. Captain L.L. LAMMERS, U.S.N., individually and as Commander, United States Navy, Portsmouth Naval Shipyard, Portsmouth, NH; Captain R.W. Smith, U.S.N., individually and as Acting Commander, Portsmouth Naval Shipyard; Captain Donald Briselden, U.S.N., individually and as Public Works Officer, Portsmouth Naval Shipyard; Captain J.F. Yurso, U.S.N., Retired, individually and as former Commander, Portsmouth Naval Shipyard; Jesse Latham, individually, and as Public Works Superintendent, Portsmouth Naval Shipyard; Marsha Pogar, individually and as EEO Representative, Portsmouth Naval Shipyard; John Does 1-10 inclusive, persons whose names are unknown to Plaintiff but were employees of the United States Navy.
• Court: U.S. District Court — District of New Hampshire

631 F. Supp. 522

Robert J. ORNELLAS v. Captain L.L. LAMMERS, U.S.N., individually and as Commander, United States Navy, Portsmouth Naval Shipyard, Portsmouth, NH; Captain R.W. Smith, U.S.N., individually and as Acting Commander, Portsmouth Naval Shipyard; Captain Donald Briselden, U.S.N., individually and as Public Works Officer, Portsmouth Naval Shipyard; Captain J.F. Yurso, U.S.N., Retired, individually and as former Commander, Portsmouth Naval Shipyard; Jesse Latham, individually, and as Public Works Superintendent, Portsmouth Naval Shipyard; Marsha Pogar, individually and as EEO Representative, Portsmouth Naval Shipyard; John Does 1-10 inclusive, persons whose names are unknown to Plaintiff but were employees of the United States Navy.

Civ. No. 85-343-D.

United States District Court, D. New Hampshire.

April 1, 1986.

Steven Eric Feld, Portsmouth, N.H., for plaintiff.

Susan Warshaw, Washington, D.C., Susan L. Howard, Asst. U.S. Atty., Concord, N.H., for defendants.

ORDER

DEVINE, Chief Judge.

This is an employment discrimination action wherein plaintiff Robert J. Ornellas brings suit against six named officials of the Portsmouth Naval Shipyard ("the Shipyard") in both their individual and their official capacities: L.L. Lammers, Commander of the Shipyard; R.W. Smith, Acting Commander; Donald Briselden, Public Works Officer; J.F. Yurso (Retired), Former Commander of the Shipyard; Jesse Latham, Public Works Superintendent; and Marsha Pogar, Equal Employment Opportunity ("EEO") Representative.¹ In a five-count, 77-paragraph complaint, plaintiff alleges that these defendants deprived him of rights protected by the Fifth Amendment of the United States Constitution; 42 U.S.C. §§ 1985 and 1986; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.; and Executive Order 11478.² Plaintiff seeks: an order enjoining defendants from discriminating against him; to be put in the position he would have held but for the discrimination (retroactive promotion and back pay); and monetary damages including punitive and/or enhanced damages for the infliction of severe emotional stress. Presently before the Court is defendants' motion to dismiss or for summary judgment³ pursuant to Rule 12(b)(1), (3), (4), (5), and (6), and Rule 56, Fed.R.Civ.P., and plaintiff's objection thereto.

In considering a motion to dismiss, the Court follows the well-established requirement that "the material facts alleged in the complaint are to be construed in the light most favorable to the plaintiff and taken as admitted, with dismissal to be ordered if the plaintiff is not entitled to relief under any set of facts he could prove." Chasan v. Village District of Eastman, 572 F.Supp. 578, 579 (D.N.H.1983), aff'd without opinion, 745 F.2d 43 (1st Cir.1984) (citations omitted). In reviewing motions to dismiss, the Court's focus is limited to the allegations contained in the complaint itself. Litton Industries v. Colon, 587 F.2d 70, 74 (1st Cir.1978). In contrast, under Rule 56(c), Fed.R.Civ.P., summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party must affirmatively demonstrate that there is no genuine, relevant factual issue, and the Court must look at the record in the light most favorable to the party opposing the motion and indulge all inferences favorable to that opposing party. General Office Products Corp. v. M.R. Berlin Co., Inc., 750 F.2d 1, 2 (1st Cir.1984); Donovan v. Agnew, 712 F.2d 1509, 1516 (1st Cir. 1983). The Court is able to render a ruling on Counts I-IV on the former standard (motion to dismiss), but will turn to the summary judgment standard as regards Count V. The following lengthy review of the facts is necessary as background to a discussion of plaintiff's claims.

Plaintiff, of Hispanic origin, is and has been for at least six years a civilian employee of the United States Navy at the Shipyard. In the spring of 1982, he was promoted to the position of Superintendent of Transportation, GM-13. In June of 1982 plaintiff and another supervisor were accused of sexually harassing and discriminating against a female subordinate. These allegations were investigated, and in June 1983 an extensive report was issued by the Navy Civilian Personnel Command which contained a recommended finding of discrimination. Defendant Latham recommended that plaintiff be discharged as a result of this finding, but plaintiff was ultimately only demoted to a lower-level position, that of Maintenance Scheduler, WD-7, effective on October 16, 1983. Plaintiff did not file any EEO complaints as a result of this discipline, though he now alleges in his complaint that: he was not guilty of sexual harassment; the alleged victim has admitted that the allegations against plaintiff were a complete fabrication; the allegations against plaintiff were filed four months after the legal deadline for filing such complaints; and the other accused supervisor, a white man, was given only a 30-day suspension from work, without demotion from his managerial position.

In January 1984 plaintiff applied for a promotion to the position of Transportation General Foreman, a position he had held prior to being the Superintendent of Transportation. Based on a marginal annual performance appraisal for the period of July 1982 to June 1983 and a voucher concerning his past work performance filled out by defendant Latham in December 1983, plaintiff was given an overall rating of 71.1, which put him in the minimally "qualified" category for the position, and plaintiff was not selected for the promotion. On January 24, 1984, plaintiff made an informal complaint to an agency EEO counselor because of this low rating. He raised numerous issues as to the impropriety of the rating process, and he claimed that he was being discriminated against because of his prior participation in an EEO matter. Plaintiff avers that he also alleged discrimination on the basis of his Hispanic background in this informal complaint, which defendants deny. The counselor was not able to informally resolve plaintiff's complaint, and plaintiff filed his formal complaint with the agency on March 1, 1984. Plaintiff raised nine claims of discrimination in this complaint, as follows:

1. The public works officer used a complaint filed before the rating period of which no decision was made until after the rating period to determine my performance rating for the period of 1 July 82 to June 83.

2. The public works officer deliberately gave me a low rating to prevent me from any future promotional opportunities by merit promotion.

3. The public works officer was aware of my Hispanic descent and was aware of the existing vacancy for the General Foreman Transportation position and deliberately rated me low so as to preclude any consideration of the only minority applying for this position.

4. The public works officer during a review of my performance rating in June of 83 implied that my performance rating overall was satisfactory but yet when I wasn't present rated me as marginal.

5. The public works officer intentionally deprived me of a copy of my performance rating thus depriving me of my appeal rights under the Merit Pay System.

6. The public works superintendent intentionally and illegally filled out an appraisal voucher on me for the Gen. Foreman's position even though he had not been my supervisor for 90 consecutive days nor had any knowledge of my past performance as a general foreman.

7. The public works superintendent knew that I was classified as a minority and as the selecting official intentionally gave me a low rating to preclude my being promoted to general foreman.

8. The rating specialist and his supervisors after being made aware orally and in writing of the discrepancies intentionally refused to re-rate my rating and refused to change its policy on the use of my previous performance rating and performance voucher.

9. The public works officer and public works superintendent deliberately gave me a marginal rating after having given both of my general foremen a Highly Satisfactory performance rating and Sustained Superior performance award for the same rating period as mine in an attempt to preclude me from any further advancement or promotions based on an alleged EEO complaint for which I had already received a disciplinary action, but yet they continue to impose additional disciplinary actions by their actions on this attempt to be promoted.

Ornellas's Complaint of Discrimination, Defendants' Exhibit B.

By letter of April 18, 1984, plaintiff was informed that the agency was only accepting issues # 6 (the "90-day" issue) and # 8 (the "re-rating" issue) for formal processing; the other seven issues were rejected by being either untimely (#'s 1, 2, 3, 4, 5, 9) or not discussed with the EEO counselor (# 7). This letter clearly informs plaintiff that the rejection of these seven issues constitutes the final Department of the Navy decision on these claims, and that plaintiff had the alternative appeal rights of filing an appeal with the Equal Employment Opportunity Commission ("EEOC") in Washington, D.C., within twenty days or of filing a civil action in an appropriate United States District Court within thirty days. In response, plaintiff wrote the Shipyard EEO office and requested that the decision to reject these seven issues be reversed. On May 3, 1984 (still within the time limits to appeal to the EEOC or to file a civil action), plaintiff was contacted by the Shipyard Equal Employment Manager, Mr. Banta, and again was informed of the correct appeal procedures. Plaintiff did not pursue his right to appeal the rejection of these seven claims within the allowable time frames.

On August 31, 1984, plaintiff's position...