Portela Gonzalez v. Secretary of Navy
| Decision Date | 25 January 1996 |
| Docket Number | Civil No. 92-1697 (JP). |
| Citation | 913 F. Supp. 122 |
| Parties | Astrid L. PORTELA GONZALEZ, et al., Plaintiffs, v. SECRETARY OF the NAVY, et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Alex González, Law Offices González & Vilella, San Juan, P.R., for Plaintiff.
Isabel Muñoz Acosta, Assistant United States Attorney, Hato Rey, P.R., for Defendant.
The Court has before it defendants' Motion for Summary Judgment and plaintiff's opposition, and defendants' supplement (docket Nos. 20, 24 and 27). Plaintiff was a career employee with the Department of the Navy, Navy Exchange, Roosevelt Roads, Puerto Rico, since 1962. During January, 1990, plaintiff was dismissed from her position as a Sales Manager in the Navy Exchange. Plaintiff asserts that her dismissal violated both procedural and substantive due process rights protected by the Fifth and Fourteenth Amendments.
Defendants contend that plaintiff was dismissed because she applied an unauthorized forty percent price reduction to red-tagged items which she had previously placed on lay-away. Defendants deny that plaintiff's dismissal failed to comply with due process requirements, since she was given notice and an opportunity to be heard concerning the charges against her before she was dismissed, and administrative review of the charges after she was dismissed. Moreover, defendants contend that plaintiff's Complaint must be dismissed because plaintiff failed to exhaust all administrative remedies before filing the Complaint.
The following is a concise statement of uncontested facts as stipulated by both parties in the Initial Scheduling Conference ("ISC") Order and in the parties statement of uncontested material facts annexed to their motions of summary judgment. See docket Nos. 17, 20 and 24.
1. Plaintiff was hired as a Sales Clerk by the Navy Exchange at Roosevelt Roads on November 1962. She was promoted through the ranks until July, 1985, when she was appointed Sales Manager. Her performance appraisals between 1983 and 1990 were all rated "excellent" except for one in 1987 that was rated "satisfactory." Her record does not contain any prior disciplinary history.
2. On December 14, 1989, plaintiff placed 28 articles of clothing on lay-away at the Exchange. Of the 28 items, 25 were "red tag" items. The total value of the merchandise was $484.10.
3. Between December 26, 1989, and December 31, 1989, the Exchange ran a sale that advertised further reductions on red-tag merchandise.
4. On December 29, 1989, plaintiff cancelled the lay-away hold that she had placed on several articles on December 14, 1989, and paid $5.00 penalty. That same day, plaintiff purchased the articles she had previously put on lay-away by making a payment of $330.79.
Plaintiff, Astrid L. Portela González, asserts that she had a property interest in her continued employment because she was a permanent employee of the Navy Exchange who had worked for over twenty-nine years. Plaintiff contends that she had permission from her supervisor Mr. K.L. Parish, Retail Operations Manager, to cancel her lay-away and take advantage of the "red tag" sale. Plaintiff argues that if her supervisor gave her permission to act as she did, then her actions could not violate a regulation. Moreover, plaintiff argues, she had a perfectly clean record for over twenty-nine years, this was her first infraction of any regulation, she allegedly had permission from her supervisor to act as she did, and the infraction in itself was relatively minor, nonetheless her employment was terminated. Therefore, plaintiff contends that her dismissal violated her due process rights under the Fifth and Fourteenth Amendments.
Plaintiff counters defendants' argument, by contending that it is not necessary to exhaust administrative remedies in order to have a judicial review in this action. Plaintiff did bring her first complaint concerning her dismissal to the administrative agency and that she did in fact use the administrative process through her third appeal within the agency. Consequently, plaintiff argues that it would have been futile for her to appeal for the fourth time to the Deputy Assistant Secretary of the Navy because her first three appeals had been unsuccessful.
Defendants assert that plaintiff Portela González was dismissed from her position as Sales Manager at the Navy Exchange because she violated the Navy Exchange's regulations by purchasing merchandise on layaway after a red tag reduction without the permission of her supervisor. Moreover, defendants assert that plaintiff has not provided any evidence which would sustain her allegation that the disciplinary action taken against her failed to comply with all the protections of due process.
Defendants further contend that plaintiff's Complaint is barred because plaintiff has failed to exhaust all administrative remedies. Plaintiff did not appeal to the Deputy Assistant Secretary of the Navy, which was the last level of appeal within the agency, before appealing to the District Court. In addition, defendants allege that plaintiff's efforts would not have been futile in the last administrative appeal because the Deputy Assistant Secretary of the Navy was an impartial official charged with overseeing the Navy's Exchange's personnel administration. Thus, defendants contend, this Court must dismiss plaintiff's Complaint for failure to exhaust administrative remedies.
Rule 56(c) of the Federal Rules of Civil Procedure provides for the entry of summary judgment in a case where "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993); Libertad v. Welch, 53 F.3d 428, 433 (1st Cir.1995); National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995), cert. denied, ___ U.S. ___, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995).
Summary judgment is appropriate where, after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, there is not the slightest doubt as to whether a genuine issue of material fact exists. Kennedy v. Josephthal & Co., 814 F.2d 798, 804 (1st Cir.1987); Peckham v. Ronrico Corp., 171 F.2d 653 (1st Cir.1948). A "genuine" issue is one that is dispositive, and which consequently must be decided at trial. Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir. 1989); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A material fact, which is defined by the substantive law, is one which affects the outcome of the suit and which must be resolved before attending to related legal issues. Mack, 871 F.2d at 181.
The party filing a motion for summary judgment bears the initial burden of proof to show "that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Thereafter, the burden shifts to the non-movant to provide the Court, through the filing of supporting affidavits or otherwise, with "some indication that he can produce the quantum of evidence necessary to enable him to reach the jury with his claim." Hahn v. Sargent, 523 F.2d 461, 468 (1st Cir.1975); see also Brennan, 888 F.2d at 191. The non-movant cannot rest upon mere allegations or denial of the pleadings. Fed. R.Civ.P. 56(e). Indeed, the non-movant must affirmatively show that "sufficient evidence supporting the claimed factual dispute exists to require a jury or judge to resolve the parties' differing versions of truth at trial." First National Bank v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968).
Defendants contend that this Complaint must be dismissed because plaintiff failed to exhaust all administrative remedies, therefore this Court does not have subject matter jurisdiction. There is no genuine question of material fact regarding plaintiff's action in appealing her Complaint.
As an employee of a non-appropriated fund instrumentality ("NAFI") of the United States federal government, plaintiff's disciplinary procedure was governed by the Department of the Navy Instructions. These instructions state that an employee has the right to file an administrative appeal of an adverse personnel action, such as termination, and also, set forth the procedures governing appeals. Pursuant to Secretary of the Navy Instruction (SECNAVINST) 5300.22A, Chapter V, dated June 25, 1982, plaintiff had the right to appeal her termination to the head of the local NAFI activity, then to the installation commander, and finally to the head of the NAFI headquarters element. Also, plaintiff had the right to a full and fair hearing before an impartial hearing officer. On November 15, 1989, SECNAVINST 5300.22B which revised the previous instruction, provided for an additional level of appeal to the Deputy Secretary of the Navy on a national basis. This instruction became effective on July 15, 1990, after plaintiff had filed her appeal at the third level.
On April 9, 1990, L.H. Arcement, Jr., the Officer in Charge ("OIC") of the Navy Exchange suspended plaintiff without pay pending disciplinary action. Exhibit C, docket No. 20. On May 29, 1990, the OIC issued plaintiff a thirty day advance warning that she would be dismissed for "applying an unauthorized 40% price reduction to red tagged clothing items you had placed on layaway policy, resulting in the loss to the exchange of $197.32." Exhibit D, docket No. 20. The letter stated the charges against plaintiff and informed ...
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Portela-Gonzalez v. Secretary of the Navy
...remedies but nonetheless reached the merits of her suit in the exercise of its perceived discretion. See Portela Gonzalez v. Secretary of Navy, 913 F.Supp. 122, 126-28 (D.P.R.1996). Portela's victory proved ephemeral, however, as the court concluded that the Navy's actions were neither arbi......