Panarello v. State
| Decision Date | 07 April 2014 |
| Docket Number | No. 2011–105–Appeal.,2011–105–Appeal. |
| Citation | 88 A.3d 350 |
| Parties | Donald PANARELLO v. STATE of Rhode Island, DEPARTMENT OF CORRECTIONS et al. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Carly Beauvais Iafrate, Esq., Providence, for Plaintiff.
Rebecca T. Partington, Department of Attorney General, for State.
Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.
The plaintiff, Donald Panarello, appeals from a judgment entered on November 26, 2010 after a lengthy jury-waived trial in the Superior Court. In the detailed decisionthat underlies that judgment, the trial justice ruled that the State of Rhode Island Department of Corrections (DOC) had not engaged in employment discrimination against the plaintiff.1
This case stems from plaintiff's allegation that he was subjected to discrimination based on his military status when the DOC denied him promotion on three separate occasions. The plaintiff concedes that the trial justice correctly articulated the burden-shifting method of proof applicable in employment discrimination cases brought under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), as codified in 38 U.S.C. §§ 4301 through 4335, and the parallel state statute which is entitled “Employment Rights of Members of Armed Forces,” G.L.1956 chapter 11 of title 30. However, plaintiff contends that the trial justice incorrectly applied the burden-shifting method. The plaintiff further asserts that what he considers to be relevant and material evidence supportive of his “ prima facie ” case of employment discrimination was overlooked or misconceived by the trial justice.
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court in favor of defendant.
Donald Panarello became a member of the Rhode Island Air National Guard in 1983. He was hired by the DOC as a corrections officer in 1988. Subsequently, in June of 2000, he left his full-time employment at the DOC in order to report for active duty with the Rhode Island Air National Guard in the “Counterdrug Operations Program”—eventually returning to the DOC in September of 2006, after having been on military leave for some six years. The plaintiff contends that the discrimination which he allegedly suffered arose out of the tension between his military and civilian careers during the years when he was on military leave. Specifically, he contends that the DOC's failure to promote him to lieutenant on three occasions during the six-year period was motivated by his military leave status in violation of the above-referenced provisions of federal and state law.
On October 21, 2003, plaintiff filed a declaratory judgment action requesting relief from the Superior Court with respect to the DOC's alleged discrimination. A bench trial was held during July and August of 2009, which ultimately culminated in the trial justice's decision in November of 2010, in which she ruled that judgment should enter in favor of defendant because plaintiff had failed to satisfy his burden of proof. In view of plaintiff's contention on appeal that the trial justice overlooked and misconceived material evidence, it will be necessary to discuss in some detail the most relevant testimony elicited at trial.
George Truman, Jr. was the first witness called by plaintiff. Mr. Truman was the Associate Director of Human Resources at the DOC when the events at issue in the instant case took place. By the time of trial he had retired from the DOC. Mr. Truman testified about the promotional process for corrections officers in general and about Mr. Panarello's situation in particular. We summarize below the essential portions of his testimony.
Corrections officers interested in promotion to the position of lieutenant would begin the process by sitting for a written examination.2 Those who score high enough on that examination are deemed qualified for promotion. When lieutenant positions become available, typically the candidates with the highest scores on the written examination are granted interviews before an interview panel; 3 at those interviews, each candidate is asked the same set of questions. It is uncontested that, by that point in the process, a candidate's examination score is no longer of significance; a sufficiently high score earns a candidate entry to the interview process, but it then ceases to play any further role. Each panelist ranks every candidate's answers to the above-referenced set of questions individually, and then the scores awarded by the various panel members are combined to provide each candidate with an overall interview score. The panel then compiles a list of the candidates ranked according to their overall interview scores. The panel also makes specific recommendations as to which candidates should receive a second interview.4 Those recommendations do not necessarily reflect the overall interview scores; for example, a candidate who ranked sixth in overall interview score could still be recommended by the panel as the top candidate to fill an open lieutenant position. The recommended candidates are then interviewed by Ashbel T. Wall (Director of the DOC) and an associate director. 5 The ultimate decision as to who will be promoted is made by Director Wall.
Mr. Panarello sat for the written examination in 1999, and he placed “7–B” out of hundreds of examinees. In 2001, there were five vacant lieutenant positions for which twelve corrections officers, including plaintiff, were interviewed. Seven candidates were then recommended to be promoted to lieutenant. The plaintiff was not one of them.
In January of 2002, plaintiff wrote to Mr. Truman contending that his military leave status had had “a negative impact on [his] promotion to Lieutenant” and stating that there was “absolutely no reason to justify not promoting” him. He alleged in the letter that Director Wall himself had told him that he would not be promoted while on military leave and that David Caruso, one of the members of the 2001 interview panel, had “chastised” him for appearing at the interview in his military uniform. The plaintiff concluded his letter by expressing his wish to be promoted “immediately in the order which [he] scored on the [written] exam,” with senioritybackdated to April of 2001. As a consequence of plaintiff's letter, a meeting was held between Mr. Truman and plaintiff. While Mr. Truman testified that he had no recollection of that specific meeting, plaintiff testified that such a meeting did take place—although he added that the only result therefrom was Mr. Truman's statement at the meeting that Director Wall made the final decision about promotions.
In May of 2002, there were additional vacancies for a position as a lieutenant, and Mr. Panarello was once again interviewed. Mr. Caruso was again a member of the interview panel. The plaintiff acknowledged, while being cross-examined at trial, that members of the panel were aware that he was on military leave because he brought his military service to the attention of the panel while explaining the significance of the USERRA to them. After participating in the interview process this second time, Mr. Panarello was again not recommended for promotion.6 On May 2, 2002, plaintiff sent Mr. Truman another letter alleging that his active duty status had again had a negative effect on his chances for promotion to lieutenant. In that letter, plaintiff alleged that Walter Whitman, a 2002 interview panelist, had told him that “as long as [he was] out on military leave [he] would not be eligible for promotion to the position of [lieutenant].”
The third incident of alleged discrimination occurred in June of 2002, when plaintiff was offered a “three-day rule” appointment as a lieutenant for a temporary period.7 The offer was withdrawn when plaintiff informed the DOC that he was not available to start immediately due to the fact that he was on military leave.8 Mr. Truman testified that being immediately available was a prerequisite to a “three-day rule” appointment. The plaintiff responded to having the offer of a “three-day rule” position withdrawn due to his unavailability by sending another letter to Mr. Truman alleging that “the discrimination [he] encountered while on military leave [was] an ongoing issue.”
Finally, as plaintiff testified, he was promoted to lieutenant, in 2007, after his return from military leave.
After Mr. Truman's testimony, plaintiff took the stand. With respect to the 2001 promotional process, Mr. Panarello testified that, when he “showed up for the panel,” Mr. Caruso asked him why he was wearing his military uniform and then stated: “It's not going to look good.” Moreover, plaintiff stated that he had scored higher on the written examination than four of the five people who were selected for promotion. He further testified that he and his wife had encountered Director Wall and his wife at the Providence Place Mall a few weeks before Christmas in 2000. According to plaintiff, when discussing the likelihood of promotion while plaintiff was on military leave, Director Wall stated: 9
Mr. Panarello next testified about his 2002 interview, and he indicated that panel member Carol Getter had remarked about the fact that he was on active military duty. In addition, plaintiff testified that Walter Whitman (also a panel member) told him that “it would not be a good management move to promote [him] to the position of lieutenant;” plaintiff added, however, that Mr. Whitman also stated that Director Wall would make the ultimate decision. 10 And he also acknowledged that Mr. Whitman commended him for his military service.
The plaintiff then proceeded to testify with respect to the “three-day rule” position ( see...
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