Pignato v. Com. of Va., Deq

Page 532

948 F.Supp. 532

John Coleman PIGNATO, Plaintiff, v. COMMONWEALTH OF VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY, and Peter W. Schmidt, in His Capacity as Director of the Virginia Department of Environmental Quality, Defendants.

Civil Action No. 3:95cv461.

United States District Court, E.D. Virginia, Richmond Division.

February 23, 1996.

James Broome Thorsen, Thorsen, Marchant & Scher, Richmond, VA, for plaintiff.

Guy Winston Horsley, Jr., Office of Attorney General, Richmond, VA, for defendants.

MEMORANDUM OPINION

PAYNE, District Judge.

John C. Pignato, a former employee of the Department of Environmental Quality ("DEQ") of the Commonwealth of Virginia, instituted this action seeking relief under 42 U.S.C. § 1983 for alleged violations of the First Amendment and the Due Process Clause of the Fourteenth Amendment. Pignato also asserted a breach of contract claim under state law.

The Commonwealth and Peter W. Schmidt, the Director of the DEQ, have moved for summary judgment on the grounds that: (1) Pignato's claims are barred by res judicata and collateral estoppel; (2) Pignato has failed to demonstrate an issue of material fact as to whether his First Amendment rights were violated; and (3) Schmidt is protected by the doctrine of qualified immunity.

STATEMENT OF FACTS

Pignato began employment with the Commonwealth on July 1, 1971. Twice thereafter, Pignato left state employment, but he was re-employed on October 1, 1984 as a Grade 17 employee in the position of Director of Administration for the State Water Control Board. When Pignato accepted that position, Grade 17 employees were permitted access to the state's grievance procedure under the Virginia Personnel Act ("VPA"), Va. Code Ann. § 2.1-110 et seq.

The purpose of the VPA is "to ensure for the Commonwealth a system of personnel administration based on merit principles and objective methods of appointment, promotion, transfer, layoff, removal, discipline, and other incidents of state employment." Va.Code § 2.1-110. As one of several means to that end, the VPA establishes a grievance procedure which affords covered employees, to the extent that their concerns cannot be resolved informally, "an immediate and fair method for the resolution of employment disputes which may arise between state agencies and those employees." Va.Code Ann. § 2.1-114.5:1 (Michie 1987), recodified at § 2.1-116.05 (1995). Where the grievance procedure is available, it may be used to challenge formal disciplinary actions, applications of written policies and procedures, arbitrary or capricious performance evaluations, acts of retaliation, and discrimination on the basis of race, sex, political affiliation, age, disability, color, national origin or religion. Va.Code Ann. § 2.1-114.5:1(A) (1987), recodified at § 2.1-116.06 (1995). Employees who have access to the grievance procedure are referred to as "classified" employees. Those who do not have access to the grievance procedure are referred to as "exempt" employees.

On July 1, 1985, eight months after Pignato was hired as Director of Administration for the State Water Control Board and almost 10 years before the termination of Pignato's employment, a change in state law reclassified certain persons holding positions of Grade 16 and higher so that they no longer were covered by the state's grievance procedure. Va.Code Ann. § 2.1-116(A)(16) (1985) (amended 1995). Those employees were commonly referred to as "643" employees, a term which derives from the Senate designation of the legislation as Bill 643, which was enacted as Section 2.1-116(A)(16) (1985) of the Virginia Code.

Under that version of the statute, which was in effect when Pignato's employment was ended, executive officers and employees who reported directly to the agency head and those at the level immediately below those who reported directly to the agency head and were at a salary grade of 16 or higher did not enjoy access to the grievance procedures.¹ Thus, in practical effect, their employment was terminable at will. Nonetheless, this statute does not strip 643 employees of all protections in respect of the termination of employment because, under the VPA, such "personnel actions shall be taken without regard to race, sex, color, national origin, religion, age, handicap, or political affiliation." § 2.1-116(16) (1985) (repealed 1995) (emphasis added).

The 1985 amendment did not affect Pignato's rights in the position for which he was hired in 1984 because, under City of Norfolk v. Kohler, 234 Va. 341, 362 S.E.2d 894 (1987), his rights in that position were vested before the 1985 amendment. Accordingly, until 1993, Pignato remained entitled to the grievance procedure, notwithstanding that he otherwise met the description of a 643 employee under the 1985 amendment.

On April 1, 1993, the State Water Control Board was merged into the DEQ, effective as of July 1, 1993. Pignato's pay grade remained at level 17.² In June 1994, Schmidt was appointed as the Director of DEQ. Upon appointment, Schmidt was instructed to assess the organizational structure of the DEQ and to determine whether there was any way to eliminate jobs in furtherance of the Governor's plan to reduce the size of state government. Five management positions, including Pignato's, were abolished as part of the ensuing effort to comply with those instructions. As a result, Pignato's employment was terminated on June 10, 1994.³

PROCEDURAL BACKGROUND

On June 29, 1994, Pignato, acting pro se, filed an action in the Circuit Court of Chesterfield County (the "Chesterfield Court") seeking: (1) an order that would allow him to use the VPA grievance procedure to challenge the termination of his employment; and (2) an injunction against termination of employment on the grounds that the termination violated 42 U.S.C. §§ 1983 and 1985, the Fourteenth Amendment, and the "Bill of Rights." (Plaintiff's Exhibit 4, Attachment 6.) On August 30, 1994, the Chesterfield Court determined that Pignato had failed to exhaust his administrative remedies and issued an order dismissing the action for lack of subject matter jurisdiction. On December 12, 1994, that litigation ended when the Supreme Court of Virginia held that no petition for appeal had been filed within the time allowed for appeal and ordered that the record be returned to the Chesterfield Court.

On July 12, 1994, six weeks before the Chesterfield Court dismissed Pignato's first action, Pignato filed a complaint with Schmidt seeking to challenge the termination under the VPA's grievance procedure. The grounds asserted in the grievance were that: (1) Pignato had accrued rights through employment by the Commonwealth which preceded the 1985 amendment adopting the so-called "643" provision of the Virginia code (which otherwise would have removed Pignato from the class of employees entitled to access the grievance procedure); and (2) Virginia law bars retroactive effect of later legislation. (Plaintiff's Exhibit 2.)

The administrative decision on the grievance concluded that, in connection with the April 1993 reorganization, Pignato was transferred to a DEQ position (Special Assistant for Program Development) which was listed as "exempt" under the VPA before Pignato accepted the reassignment.⁴ The administrator also determined that, under the VPA, grievance rights are not portable and that, therefore, notwithstanding that before the DEQ reorganization Pignato may have had vested grievance rights, he lost them upon transfer to the exempt position in 1993. For those reasons, the administrator determined that Pignato had no grievance rights. (Stipulated Record of State Court Proceedings, Tab 1, Letter of September 16, 1994.)

On September 28, 1994, Pignato appealed that decision to the Circuit Court of the City of Richmond (the "Richmond Court") which reviewed the action de novo under Va.Code Ann. § 2.1-114.5:1(E), recodified at § 2.1-116.07 (1995). On November 4, 1994, the Richmond Court affirmed the administrative decision that, under Va.Code Ann. § 2.1-116(16), Pignato did not have access to the grievance procedure. In so doing, the Richmond Court rejected Pignato's argument that, under the authority of City of Norfolk v. Kohler, 234 Va. 341, 362 S.E.2d 894 (1987),⁵ he had vested rights in the grievance procedure which survived the 1993 merger of agencies.

Relying upon Grove v. Powell-Woodson, No. HA-1199-3 (Va.Cir.Ct. May 7, 1991), the Richmond Court held that, where an employee of the state government is transferred involuntarily to a position which terminates his right to a grievance procedure, he loses any vested right he may have to that procedure unless the transfer was accomplished by the agency as a ruse to eliminate the employee's vested rights.⁶ Finding that Pignato's transfer as part of the 1993 consolidation of agencies was no such ruse, the Richmond Court stated:

[f]rom the administrative record and the evidence presented in this case, the court finds that the consolidation of agencies which occurred in April, 1993, as well as plaintiff's change in jobs which occurred as a result of that consolidation, were not devices used by the state to deprive plaintiff of his grievance rights. Instead, they were legislative exercises of governmental discretion which were undertaken for purposes unrelated to plaintiff's employment rights.

(Stipulated Record of State Court Proceedings, Tab 9, p. 5.) In accordance with those findings, the Richmond Court denied Pignato's request for a panel hearing before the grievance committee because, as of 1993, Pignato's position with the DEQ was excluded from the class of employees entitled to the grievance procedure. Subsequently, Pignato filed a Motion to Reconsider, but, following a hearing, the Richmond Court entered an order on December 8, 1994 denying it. Pignato then instituted this action as to which the defendants now seek summary judgment.

STANDARD FOR SUMMARY JUDGMENT

Summary judgment is to be...