Soltani v. Smith

Decision Date04 February 1993
Docket NumberCiv. No. 92-142-SD.
Citation812 F. Supp. 1280
PartiesSharon E. SOLTANI v. Douglas A. SMITH, personally; Douglas A. Smith, Chief Deputy Treasurer; Georgie Thomas, personally; Georgie Thomas, State Treasurer; State of New Hampshire Treasury Department.
CourtU.S. District Court — District of New Hampshire

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Tony F. Soltani, Chichester, for plaintiff.

Susan Geiger, Asst. Atty. Gen., Concord, for defendants.

ORDER

DEVINE, Senior District Judge.

This order addresses the motion for summary judgment filed on September 1, 1992, by defendants Douglas A. Smith, as an individual and as Chief Deputy Treasurer, State of New Hampshire Treasury Department; Georgie Thomas, as an individual and as State Treasurer; and the State of New Hampshire Treasury Department.

1. Factual Background

In December of 1990, plaintiff was an employee of the Treasury Department in the position of Account Clerk III. Plaintiff's employment in this position continued through September 21, 1992.

On August 31, 1990, the position of Accounting Technician was posted in-house within the Treasury Department. Plaintiff applied for the position within the time allotted.

Diane Townsend had been employed at the Treasury Department at the level of Computer Operator I until being "bumped" by Treasury Department employee Bob Parker, who had previously been given notice that he would be laid off. Diane Townsend also applied for the position of Accounting Technician. In her affidavit, plaintiff states that "Diane Townsend is related to Defendant Thomas." Plaintiff's Affidavit in Support of Plaintiff's Objection to Motion for Summary Judgment ("Plaintiff's Affidavit") at ¶ 8.

On or around October 1990, defendant Thomas announced to all applicants for the position that it was downgraded to Account Clerk III and would be given to Diane Townsend. The position was not permanently reclassified until the summer of 1992. At no time did either defendant Smith or defendant Thomas ask plaintiff to withdraw her application for the position, nor did plaintiff ever withdraw said application.

In her affidavit, plaintiff states that after repeated requests she was allowed to take the certification exam required for the position, and that on December 13, 1990, she received a notice from the State of New Hampshire Department of Personnel informing her that she was the only applicant certified for the position. Plaintiff's Affidavit at ¶ 11.

On December 19, 1990, plaintiff filed an appeal with the State of New Hampshire Personnel Appeals Board (PAB). Plaintiff's Affidavit at ¶ 13; Plaintiff's Request For Hearing For Denial Of Promotion, dated December 19, 1990 (Attachment 5, at 1-3, to Plaintiff's Memorandum in Support of Plaintiff's Objection to Defendant's Motion for Summary Judgment ("Plaintiff's Objection Memorandum")). By letter from plaintiff's counsel Tony F. Soltani, Esquire, dated December 19, 1990, plaintiff informed defendant Smith that she had filed the PAB appeal. Plaintiff's Objection Memorandum, Attachment 2, at 1. This letter contained, inter alia, the following statements: Simultaneous to this particular appeal, I wish to bring to your attention my request for adjustment and correction in the following areas:

1 — Sharon Soltani was unlawfully denied a promotion.
2 — Sharon Soltani's position at the treasury is erroneously classified.
3 — The position of accounting technician was illegally classified.

Id. By letter from plaintiff's counsel to defendant Thomas dated January 2, 1991, plaintiff purportedly enclosed a copy of the aforementioned letter to defendant Smith. See Plaintiff's Objection Memorandum, Attachment 3. By letter from plaintiff's counsel dated January 10, 1991, plaintiff informed State of New Hampshire Director of Personnel Virginia Vogel that defendant Thomas "refused adjustment, correction or any effort aimed at resolution of the matter of the Treasury Department's failure to promote plaintiff to the position", Plaintiff's Objection Memorandum, Attachment 4, at 1, and described in detail the elements of plaintiff's disagreement with the Treasury Department over this matter. See id. at 1-4.

In his affidavit, defendant Smith states, I met with the Plaintiff, Sharon Soltani and Defendant, Georgie Thomas, sometime after receiving notice that the Plaintiff had appealed her non-selection for the position of accounting technician. The sole purpose for the meeting was to determine why the Plaintiff filed the appeal. Neither Defendant Thomas nor I could understand why the appeal had been filed in view of the fact that the Plaintiff had been told the reasons why the position was de-posted.

Affidavit of Douglas Smith at ¶ 2. In her affidavit, defendant Thomas states,

After learning that the Plaintiff had appealed her non-selection for the de-posted position of Accounting Technician, I met with her and Chief Deputy State Treasurer Douglas Smith. The sole purpose of this meeting was to determine why Ms. Soltani had filed her appeal. I did not understand why she had pursued the appeal after I had explained that the position was posted in error and that deposting had occurred to keep Treasury Department employees from being laid off or bumped from their positions. The Plaintiff did not offer any adequate explanation for the appeal at that time.

Affidavit of Georgie Thomas at ¶ 8.

As the foregoing excerpts of defendants' affidavits confirm, after defendant Thomas received notice of the PAB appeal, plaintiff was called into defendant Thomas's office to be privately questioned by defendant Thomas and defendant Smith. According to plaintiff's account, during this encounter, defendant Thomas

scolded me in a shouting voice and pounded her fist on her desk. I was visibly shaking and crying and was told to leave Defendant Thomas' office.

Plaintiff's Affidavit at ¶ 16.

In her affidavit, plaintiff states that

on or around January 1991, Defendant Smith spoke with me about my appeal on a weekend when I was working overtime. He stated that they were required to check the recall list before posting the ... position which they had not done. He stated that he and Defendant Thomas rushed to post the ... position in order to keep Diane Townsend, a relative of Defendant Thomas, employed. He continued on to state that at that point they were `outside the rules' and did not follow them after that. He asked me to drop my appeal because he was sure Defendant Thomas was not going to give me what I wanted.

Plaintiff's Affidavit at ¶ 17 (emphasis added).

Plaintiff states that on or about January 1991, defendant Smith told her to remain on the premises after working hours. According to plaintiff, defendant Smith

kept me over one hour, questioning me about my appeal and pressuring me to drop the appeal. He stated that if I pursued the appeal that things would not be nice and that Defendant Thomas was of the opinion that I had `stabbed her in the back'; he also stated that I didn't stand a `chance in hell of winning' and that I should drop it now. He also warned me Thomas would hold a grudge. Finally I was allowed to leave, again visibly upset and shaken.

Plaintiff's Affidavit at ¶ 18. Defendants deny these allegations, except to the extent that they admit that on this occasion,

Defendant Smith asked the Plaintiff to speak with him privately at a time when other employees had left the premises and that during this conversation Defendant Smith stated that he felt he's been stabbed in the back by her actions and he assumed Defendant Thomas felt the same way.

Defendant's Answer to Amended and Supplemented Complaint at ¶ 18.

Plaintiff further states that

on or about January, 1991 while in the performance of my duties in a work area of the office, Defendant Thomas shouted at me to `go ahead and hit me in the back', in the presence of other department employees. I was embarrassed and humiliated.

Plaintiff's Affidavit at ¶ 19.

On May 22, 1991, plaintiff attended a preliminary hearing of the PAB, at which defendant Smith and plaintiff's counsel were also in attendance. Plaintiff states that on this day defendant Smith ordered her to remain after working hours, began to question her about the appeal, and advised her "that things were going to get `sticky.'" Plaintiff's Affidavit at ¶ 21.

Plaintiff alleges that on or about May 1991,

while performing my work duties Defendant Smith singled me out for a scolding, he advised me that I had been on break too long and that I should watch my step since I was being scrutinized and watched.

Plaintiff's Affidavit at ¶ 22. Defendants deny this, while admitting that on this occasion defendant Smith advised plaintiff that she had been on break too long. Defendants' Answer to Amended and Supplemented Complaint at ¶ 22.

On March 16, 1992, plaintiff filed a complaint with this court, commencing the instant action. On March 23, 1992, plaintiff was given a copy of a written warning by defendant Thomas. On March 24, 1992, plaintiff found a sealed envelope bearing her name on her desk. The envelope contained yet another copy of the same warning. The warning accused plaintiff of leaving a machine, which defendant Thomas identifies in her affidavit as "check signing equipment", Affidavit Of Georgie Thomas at ¶ 9, and a signature plate, in an unsecured manner overnight on March 18, 1992. Plaintiff's Affidavit at ¶ 35. Defendant Thomas did not ask plaintiff whether she had left the machine on or whether she had left the signature plate out.

Plaintiff was not the last person to leave the office on March 18, 1992, and the vault was still open when she left. Plaintiff states that Diana Watson, the employee who discovered the machine on, was not the first person in the office on the morning of March 19, 1992. Plaintiff's Affidavit at ¶ 37. Other employees of the Treasury Department have the authority and access to use the same machine and to obtain the signature plates...

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