Sierra Perez v. US, Civ. No. 90-2222 (JAF).

• Citation: 779 F. Supp. 637
• Decision Date: 25 October 1991
• Docket Number: Civ. No. 90-2222 (JAF).
• Parties: Sixto SIERRA PEREZ, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Puerto Rico

779 F. Supp. 637

Sixto SIERRA PEREZ, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. 90-2222 (JAF).

United States District Court, D. Puerto Rico.

October 25, 1991.

Armando Cardona-Estelritz, Isidro Garcia Pesquera Law Offices, San Juan, P.R., for plaintiffs.

Daniel F. López-Romo, U.S. Atty., Isabel Muñoz-Acosta, Asst. U.S. Atty., San Juan, P.R., for defendant.

OPINION AND ORDER

FUSTE, District Judge.

Plaintiffs Sixto Sierra Pérez, a former employee of the Veterans Canteen Service ("VCS") at the Veterans Affairs Medical Center ("VA") in San Juan, Puerto Rico, and various family members commenced this action against the United States government pursuant to the Federal Tort Claims Act ("FTCA"), as amended, 28 U.S.C. §§ 2671-2680. Plaintiffs alleged that defendant's tortious conduct resulted in personal injury, property damage, and mental anguish. Specifically, they claimed that the circumstances surrounding Sierra Pérez' dismissal amounted to employment discrimination. They also raised a potential medical malpractice claim for the VA and one of its employee physician's handling and disclosure of blood test results showing that Sierra Pérez had tested positive for the Acquired Immuno-Deficiency Syndrome ("AIDS").

The government has moved for summary judgment asserting various grounds. First, defendant argues that the employment discrimination claim should be dismissed either: (a) because the claim is not cognizable under the FTCA, or (b) plaintiffs have failed to exhaust administrative remedies. As to the cause of action based on alleged medical malpractice, defendant argues that plaintiffs have failed to state a claim. Although this court granted plaintiffs a thirty-day extension in which to oppose defendant's motion (Docket Document No. 15), they filed no opposition.¹

For the reasons outlined below, we grant the government's motion for summary judgment and dismiss plaintiffs' complaint.

I. Facts

Plaintiff Sierra Pérez began his employment with the VCS in June 1981. His Notification of Personnel Action, (Docket Document No. 15, Exhibit B), stated that he was appointed to the position of food service worker pursuant to 38 U.S.C. § 4202(5).² Plaintiff's position is classified as an excepted appointment and, as such, is generally not subject to the federal civil service law.

In 1983, subsequent to plaintiff's appointment, VCS workers in San Juan became affiliated with the American Federation of Government Employees, AFL-CIO ("union") and became subject to the terms of the collective bargaining agreement ("CBA") negotiated between the union and the VA. The CBA provided procedures to be followed before disciplinary and/or adverse actions such as removal could be taken by the VCS. Also, the CBA contained certain steps for the resolution of grievances filed by employees. Unresolved grievances could be taken by the union or management to arbitration.

Plaintiff claims that his employment problems began in August 1987, when the VCS announced an opening for a food service worker. Plaintiff applied for the position, which would have resulted in a promotion. However, a fellow worker, Luis Colón Matos, was chosen to fill the position. Colón had worked with the VCS since 1973 and had a higher work classification than plaintiff.

Around the time of the promotion denial plaintiff complained to the union that the VCS supervisor, Mr. Bloom, was harassing him. After this, according to plaintiff, relations with his supervisors deteriorated and the latter began to take adverse actions against him in reprisal for his complaint to the union. One alleged incident occurred on October 6, 1987, when Bloom stopped plaintiff on a stairway and, in the presence of coworkers and others, questioned the latter as to the contents of a paper bag. According to plaintiff, the supervisor sought to demonstrate that the goods in the bag were stolen. Following the incident, plaintiff filed a formal grievance with the union.

This grievance was scheduled to be heard on November 23, 1987. However, because of plaintiff's illness, the union requested an extension of time. In his deposition plaintiff admits that he did not continue the grievance process after he was terminated from his employment. (Docket Document No. 15, Exhibit I at 41).

On October 1, 1987, plaintiff consented to a voluntary blood test to determine whether antibodies against the "HTLV-III/LAV" virus were present. The consent form which plaintiff signed explained that this virus caused AIDS. It went on to relate that a positive finding did not, in and of itself, confirm that a person has AIDS. Rather, a positive result meant that the person had been exposed to the virus at some time. Before one is diagnosed as having AIDS, along with a positive result on the test, evidence must usually be found of an infectious condition caused by microorganisms not frequently encountered, a tumor, or an unusual condition. Also, the consent form explained that the test results would be part of the employee's medical file but would not be revealed to the public without the person's authorization. The only exception to the rule of nondisclosure would be the release of the information to public health authorities, if so required.

On October 13, 1987, the results of the test came back reactive to the virus. Plaintiff was also referred to the "Centro Latinoamericano de Enfermedades de Transmisión Sexual" ("CLETS") for further examinations. (Docket Document No. 15, Exhibit N). A second AIDS test, the Western Blot, was later administered to plaintiff.

On the following day, Dr. Sonni, a VA employee and plaintiff's treating physician, sent a memo to the Chief, Personnel Service, informing as to plaintiff's work status. The memo reads in its entirety:

1. This is to inform that Mr. Sixto Sierra Pérez — SSN: XXX-XX-XXXX was found in routine blood examination unfit for work.

2. He should not work in food department, food handling or in direct patient care.

3. We recommend that (sic) should be separated from his job and declared permanently disabled.

(Docket Document No. 15, Exhibit O).

Subsequently, plaintiff was removed from his position. In a memo from the Chief, Personnel Service, dated October 26, 1987, he noted that, based on his medical condition, plaintiff had to be reassigned to another position in the VCS and that no suitable positions were available and that, as an excepted service employee, he was not entitled to reassignment to the competitive service. He also noted that plaintiff expressed his desire to apply for disability retirement. The Chief requested the medical documentation necessary to process plaintiff's retirement. (Id., Exhibit P). In a January 8, 1988 memo, Dr. Sonni noted that plaintiff had failed to complete the physical disability exams necessary to make a disability determination.

Plaintiffs' complaint added only that, on October 21, 1987, upon reporting to work, plaintiff Sierra Pérez was confronted by coworkers who "looked at him insistently and/or in a strange manner and greeted him with cryptic, evasive remarks about his state of health and/or the way he felt." (Complaint ¶ 19). He inferred from these facts that they were informed of his medical condition prior to his own notification in violation of his confidentiality and privacy rights. (Id. ¶ 20).

By mid-January 1988, the results of the Western Blot test came back and Sierra Pérez had tested negative for AIDS. (Docket Document No. 15, Exhibit S). Following this, Dr. Sonni attempted to contact plaintiff to inform him of these latest results but plaintiff never contacted the doctor. Also, his VCS supervisor sent a certified letter dated January 19, 1988, requesting plaintiff's presence at Dr. Sonni's office on January 26, 1988. Again plaintiff did not respond.

Finally on March 11, 1988, again by certified mail, plaintiff was informed that he had been separated from the VCS based on his abandonment of the position. (Id., Exhibit V).

II. Summary Judgment Standard

Defendant has made a motion for summary judgment pursuant to Fed. R.Civ.P. 56. A court should grant a motion for summary judgment "if the pleadings, depositions, and 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." Fed.R.Civ.P. 56(c); Lipsett v. University of Puerto Rico, 864 F.2d 881, 894 (1st Cir.1988). The two inquiries which the court must make before granting or denying a motion for summary judgment relate to the materiality and the genuineness of the factual dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Sheinkopf v. Stone, 927 F.2d 1259, 1261 (1st Cir.1991); Local No. 48, United Brotherhood of Carpenters & Joiners v. United Brotherhood of Carpenters & Joiners, 920 F.2d 1047, 1050 (1st Cir.1990); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990).

In order to determine whether the factual dispute between the parties is "material", the substantive law will identify which facts are material. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Sheinkopf, 927 F.2d at 1262; see generally 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2725 at 93-95 (1983).

The second determination relates to the "genuineness" of the dispute about the material facts. In Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510, the Court explicitly stated that a dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." It is not required that the party opposing summary judgment, in asserting the existence...