Donald Panarello v. State of Rhode Island, Department of Corrections , 88 A.3d 350 ( 2014 )

Supreme Court
No. 2011-105-Appeal.
(PC 03-5569)
Donald Panarello :
v. :
State of Rhode Island, Department of :
Corrections et al.
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2011-105-Appeal.
(PC 03-5569)
Donald Panarello :
v. :
State of Rhode Island, Department of :
Corrections et al.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Robinson, for the Court. 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 decision that 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
1
The Employees’ Retirement System of Rhode Island had also been named as a defendant
at the commencement of this civil action, but it reached a settlement with plaintiff after the trial
concluded and before the trial justice rendered her decision. Accordingly, the claims against that
entity were dismissed with prejudice by the Superior Court on November 9, 2009.
Consequently, the trial justice’s decision focused only on the remaining defendant, the DOC.
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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.
I
Facts and Travel
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
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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.
A
The Plaintiff’s Witnesses
1. The Testimony of George Truman, Jr.
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
2
The promotional process within the DOC falls under the aegis of Rhode Island’s Merit
System statute, which is codified in G.L. 1956 chapter 4 of title 36.
3
Mr. Truman testified that it is possible that one or other of the candidates interviewed
would not have been a candidate with a top examination score—because, for example, a
candidate may decide that he or she is not interested in being promoted at that time or may be
unavailable.
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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
4
Mr. Truman testified that interview panels sometimes make recommendations and
sometimes do not. It was, however, the testimony of Ashbel T. Wall (Director of the DOC) that
interview panels usually do make a recommendation.
5
Whenever we refer to an interview in this opinion we are referring to the initial round of
interviews.
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be promoted “immediately in the order which [he] scored on the [written] exam,” with seniority
backdated 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
6
Mr. Truman testified that the management staff at the DOC in 2001 and 2002 was not
familiar with the requirements of the USERRA. At trial, Mr. Truman acknowledged that in his
deposition he used the word “clueless” to describe the level of familiarity which the DOC
management staff had with respect to the USERRA. Lieutenant Colonel Denis Riel of the Rhode
Island National Guard testified that he conducted a USERRA training session at the DOC in
2006.
7
With respect to the “three-day rule” Mr. Truman testified that, when there is a vacant
position for an extended period of time due to the fact that an individual is on some type of leave,
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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.
2. The Plaintiff’s Testimony
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
the DOC can fill that position by “taking someone of lower rank and placing them into [the]
position * * * .” In his testimony, Mr. Truman characterized such a personnel action as “a
temporary appointment;” and he further testified that an individual can stay in a “three-day rule”
position for only six months before he or she will lose seniority benefits from his or her previous
position. According to Mr. Truman’s testimony, the decision as to whom to appoint to a “three-
day rule” position is confided to the sole discretion of Director Wall. The “three-day rule” was
also sometimes referred to as the “eleven-day rule” in the trial testimony.
8
Mr. Truman acknowledged that plaintiff had told him that, if he were offered a
promotion, he would leave military service and return to the DOC. However, plaintiff testified
that he still would not have been able to start immediately due to the necessity of: (1) giving
adequate notice that he was leaving his military position; and (2) training a replacement.
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plaintiff was on military leave, Director Wall stated: “I would not promote you to a position of
lieutenant if you’re not here to do the job. I need someone to do the job.”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
footnote 7, supra) that was offered to him in June of 2002; he stated that he was asked to start
working in that position right away11 but that he told the person who offered him the position
that he would not be able to start until late August or early September due to his military duties.
It was plaintiff’s further testimony that he was not given the “three-day rule” position because he
could not start immediately—whereas, he added, he later learned that the position was not filled
until late October or early November.
9
The plaintiff’s wife, Maryann Panarello, gave confirmatory testimony at trial with respect
to plaintiff’s testimony about the chance meeting with Director Wall at the Providence Place
Mall.
10
The plaintiff acknowledged at trial that Mr. Whitman’s statement came in response to his
own question to Mr. Whitman about his chances of promotion to lieutenant.
11
The plaintiff testified that he was offered the position on a Friday and was expected to
start the following Monday.
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The plaintiff further testified that, when he returned to the DOC in 2006, he once again
sat for the written examination for promotion to lieutenant—this time ranking 27A.12 Thereafter,
in September of 2007, he was promoted to lieutenant. He stated at trial that, except for the fact
that he had obtained a bachelor’s degree in 2007, his qualifications had not changed dramatically
from the 2001 and 2002 interviews to the time of his promotion in 2007.
On cross-examination, plaintiff acknowledged that in his deposition he had expressed his
understanding that the written examination score was without significance once a candidate
received an interview. He further recognized, in testifying on cross-examination, that his
interview score in 2001 ranked him eleventh of twelve candidates. The plaintiff also admitted to
bringing his military service to the attention of the 2002 interview panel of his own accord.
Specifically, he testified that he thought that he needed to educate the interview panel about the
USERRA. His cross-examination also elicited the following facts: (1) that he was unaware that
there are National Guard regulations prohibiting the wearing of a National Guard uniform to a
civilian interview; (2) that his interview score in 2002 ranked him fifth of seven candidates; (3)
that he did not review current DOC policies before his 2002 interview, despite the fact that they
were available at the training academy; (4) that one of the candidates selected for promotion in
2002, one Joseph Mullensky, also had a military background; and (5) that the other candidate
selected in 2002 was one William Bove, who had approximately twenty years of managerial
experience and ten years of labor relations experience.
12
In 2006, Mr. Panarello sat for the written examination for promotion to lieutenant a
second time because, pursuant to § 36-4-22(a)(1)(ii), a “promotion list[]” generated from a
written examination for promotion is only “in effect for a period of three * * * years * * * .”
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3. The Testimony of Joseph Forgue, Jr. and John Lavery
After plaintiff’s testimony concluded, two additional witnesses were presented on his
behalf—Joseph Forgue, Jr. and John Lavery.
At the time of trial, Mr. Forgue was a DOC Special Investigator. He testified that he had
served in the Rhode Island National Guard and that the DOC had failed to select him for an
interview for promotion to lieutenant in 2001 and 2002 even though he had passed the written
examination for lieutenant and was ranked eleventh; he further stated that, when he returned
from active duty, he expressed interest in serving as the Chief of the Special Investigations Unit
on a temporary “three-day rule” basis but was not given that opportunity. He added that he was
not given the “materials or opportunity” to take a make-up written examination upon his return
from a 2004 deployment. Mr. Forgue indicated at trial that he believed being away on military
leave put him at a disadvantage with respect to being promoted. However, he did acknowledge
in his testimony on cross-examination that he had served as temporary Chief of the Special
Investigations Unit on a number of occasions and that he was later interviewed for the position of
Chief on a permanent basis, although someone else was ultimately selected.
At the time of trial, Mr. Lavery was a DOC training instructor; he had served in the
Massachusetts National Guard for approximately twelve years, receiving an honorable discharge
in 2002. He alleged in his testimony at trial that, upon his return from overseas duty, he was
informed by the DOC that he still had to complete a six-month probationary period which had
started before his military leave. According to his testimony, he took issue with the DOC’s
position on his probationary period because he believed that the probationary period should have
expired while he was on military leave. He further testified that he had engaged in a dispute with
the DOC concerning bidding rights, pay, retirement, sick time, and vacation time due to the
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DOC’s requirement that he serve the remainder of his probationary period upon returning from
military leave, but he acknowledged that the bidding rights issue was resolved in his favor.
B
The Witnesses for the Defense
1. The Testimony of Carol Getter
Carol Getter was a correctional officer who held the rank of lieutenant when she served
on the 2002 interview panel. At the time of trial she had retired from the DOC after more than
thirty years of service. She testified that, when serving on the interview panel, she looked for a
candidate who was self-confident, who was knowledgeable about departmental policies and
procedures, and who would represent the department in a “beneficial light.” Ms. Getter stated at
trial that plaintiff arrived for the interview wearing his military uniform, mentioned that he was
on military leave, and specifically told the panel that, according to law, his active duty status
could not be held against him with respect to promotion. She further testified that, from her
perspective, plaintiff’s military uniform was a “positive factor;” she also stated that she did not
recall any comments by other panel members about the uniform.
It was Ms. Getter’s further testimony, however, that plaintiff acknowledged during the
interview before the panel that he was not up-to-date on DOC policies and procedures; she added
that he asked that he be allowed to “shadow” another lieutenant for a couple of weeks if he were
to receive the promotion. She stated on cross-examination that it would have been possible for
plaintiff to brush up on DOC policies even though he was on military leave.
Ms. Getter stated that plaintiff’s military status did not affect her interview score, but she
did acknowledge on cross-examination that she factored his absence from the DOC into her
score. Specifically, she testified that she indicated in her interview notes that plaintiff was not
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available for immediate service as a lieutenant in order to alert the pertinent officials in case the
position required an immediate presence. Ms. Getter testified that, while plaintiff could have
been promoted while on military leave, it was her belief that absence “should be a factor” in
deciding whom to promote. She noted at trial that the individuals whom she scored higher had
impressive computer skills and were knowledgeable about policies and procedures; she noted
that one had even developed a “spork”13 utensil for the DOC, which saved money.
2. The Testimony of Walter Whitman
The next witness, Walter Whitman, a former warden at the DOC, also served on the 2002
panel. At the time of trial he had retired from the DOC. He testified that all candidates for
promotion were asked the same questions and that knowledge of departmental policies and
procedures was the most important criterion assessed at the interview. He also corroborated Ms.
Getter’s testimony that plaintiff arrived at the 2002 interview in his military uniform and
suggested to the panel that, in view of federal law, his active military status should “have a
positive impact on his candidacy for promotion.” Mr. Whitman testified that, during the
interview he concluded that plaintiff’s knowledge of policies and procedures was “average.” He
further testified that plaintiff’s military leave status did not factor into the score he gave plaintiff
on any of the questions. He also stated in his testimony, however, that he told plaintiff at the
interview that plaintiff’s availability would have an impact and that plaintiff “may want to
consider that before he [reached] the next level of interview[s].” Mr. Whitman further testified
that availability would have an impact if he were making the decision because “practical
matters” had to be taken into account; he acknowledged that he believed that holding a position
13
A “spork” is defined as “[a]n eating utensil having a spoonlike bowl and tines.” The
American Heritage Dictionary of the English Language 1692 (5th ed. 2011).
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vacant for someone on leave would not be a “good management decision.” Mr. Whitman also
stated that plaintiff’s military status would not be looked upon unfavorably, but he also stated
that “there’s an operational consideration. His unavailability would have had an impact on his
candidacy.” It is noteworthy, however, that the score recorded by Mr. Whitman was the highest
score that plaintiff received from the members of the 2002 interview panel.
3. The Testimony of Robert McCutcheon
Robert McCutcheon served on the 2001 interview panel. He testified that his own notes
from the 2001 interview of Mr. Panarello stated: “Candidate gave an average interview.”
Despite plaintiff’s “average” interview, Mr. McCutcheon scored only five candidates higher than
plaintiff out of the twelve candidates interviewed. He testified that his notations at the interview
indicated that plaintiff should not be promoted at that time but that he felt plaintiff would be a
good candidate when he had “a little more time on the job.” It was Mr. McCutcheon’s testimony
that his view that plaintiff should not be promoted at that time was not due to the fact that
plaintiff was out on military leave.
4. The Testimony of David Caruso
David Caruso was a deputy warden who sat on all three interview panels which evaluated
plaintiff for promotion—in 2001, 2002, and 2007. At the time of trial, he had retired from the
DOC. He testified that, when serving on an interview panel, he looked for some knowledge of
DOC policies and procedures. When asked at trial if he had “chastised” plaintiff for wearing his
military uniform to the 2001 interview, he replied: “Not to my recollection.” Mr. Caruso also
testified that he did not remember anything particular about plaintiff’s appearance at the 2001
interview; he added that he did not remember making any comment at all about plaintiff’s
appearance at that interview. Mr. Caruso stated at trial that some of the other candidates in 2001
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and 2002 had a greater depth of knowledge than plaintiff, and he affirmed that plaintiff’s military
leave status did not factor into the score that he submitted. Additionally, it was Mr. Caruso’s
testimony that plaintiff was better prepared in 2007 and performed better at that interview than
he had in his previous interviews. On cross-examination, Mr. Caruso acknowledged that the
chairman of the 2001 panel, Tom Partridge, submitted seven names to the Director, and he also
acknowledged that they were not the seven highest ranking interview candidates.
With respect to plaintiff’s performance at the 2001 interview, Mr. Caruso’s notes, which
were a full exhibit at trial, state that plaintiff “lacked knowledge of minimum standards;” and, as
to one question, the notes state that plaintiff “missed the most important points.” Mr. Caruso’s
notes from the 2002 interview, when referring to plaintiff, read in pertinent part as follows: (1)
“Does not appear to have prepared himself for a Correctional Lieutenants [sic] position — But
he is however well versed for the military — Although there are similarities he should have put
more effort in the position being sought;” and (2) “shallow in what he [thought] a lieutenant
should do.” 14
5. The Testimony of Cynthia Drake
The defendant also called Cynthia Drake, who was a DOC deputy warden both at the
time of trial and when she served on the 2001 interview panel evaluating Mr. Panarello. It was
her testimony that a successful candidate for promotion to the position of lieutenant “really needs
to know policy [and] procedures [of the DOC].” Ms. Drake testified that plaintiff was dressed in
his “fatigues” at the 2001 interview; but she stated that she did not consider his military status
when deciding what score to award. She further testified that Mr. Panarello received a low score
because his answers were not sufficiently complete. Ms. Drake also corroborated Mr. Caruso’s
14
In the passages from Mr. Caruso’s 2001 and 2002 interview notes quoted in the text, we
have conformed the capitalization of letters.
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testimony that the 2001 panel leader, Mr. Partridge, deviated from the interview rankings when
recommending candidates to the Director.
6. The Testimony of Silma-Del Langley and Sergio DeSousarosa
Silma-Del Langley and Sergio DeSousarosa, both of whom served on the 2007 interview
panel, also testified. Ms. Langley testified that she had known plaintiff prior to the 2007
interview and that she observed a great improvement in plaintiff’s manner of thinking between
the time when she worked with him in the early 2000s and when she worked with him again in
2006. She testified that her notes reflected her observation that plaintiff had reviewed DOC
policies prior to the interview and that she had recommended him for promotion. Mr.
DeSousarosa asserted in his trial testimony that he did not factor plaintiff’s military status in his
scoring of plaintiff’s interview.
7. The Testimony of Ashbel T. Wall
Ashbel T. Wall, Director of the DOC, testified concerning the determination of whom to
promote; he stated that he considers the scores of the candidates recommended by the interview
panel, any comments on the interview forms, personnel records, absentee records, letters of
recommendation, disciplinary records, résumés, and any other information that the candidate
chooses to provide. However, he added that it is his practice to look at the interview score sheets
and other information pertaining only to those individuals who were recommended by the
interview panel. Director Wall stated in his testimony on cross-examination that interview
panelists should not consider a candidate’s military status or military-related absence in the
interview process, but he also acknowledged that he was not aware of any training at the DOC in
2001 or 2002 relative to discrimination against members of the military. Additionally, he
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testified that the task of filling temporary “three-day rule” positions is left to the assistant
director of the relevant division.
When questioned about the statement that he allegedly made to plaintiff at the Providence
Place Mall, regarding his possibility of promotion while on military leave, Director Wall
acknowledged that he did encounter plaintiff at the Mall, but he stated that he did not recall
plaintiff asking about his chances of promotion. He added that he did not think that at that time
he even knew that plaintiff was on military leave, and he stated that it would have been out of
character for him to have made the alleged statement. Director Wall’s wife, Maria DeCarvalho,
supported his testimony, stating that, while she did not remember the specific Providence Place
Mall encounter with plaintiff, she could not recall any interaction with a DOC employee where
Director Wall told the employee he or she would not be promoted while on military leave. Ms.
DeCarvalho further testified that she would have been surprised to hear such a statement from
her husband because he had expressed pride that the DOC is one of the largest sources of
military personnel in Rhode Island.
C
The Superior Court’s Rulings
On January 22, 2009, the trial justice issued a preliminary decision in which she
addressed certain matters relative to the instant case. In that decision, the trial justice ruled that
the two-part burden-shifting paradigm, which was employed by the United States Court of
Appeals for the First Circuit in its scholarly opinion in the case of Velázquez-García v. Horizon
Lines of Puerto Rico, 473 F.3d 11, 17 (1st Cir. 2007), articulated what she deemed to be the
appropriate method for evaluating a case brought under the USERRA. Specifically, the
Velázquez-García analysis requires the employee alleging a violation of the USERRA to
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demonstrate, by a preponderance of the evidence, that his or her protected status was “a
substantial or motivating factor” in the adverse employment action. Id. (internal quotation marks
omitted). The burden of proof then shifts to the employer to show, again by a preponderance of
the evidence, that the adverse employment action would have been taken in the absence of the
employee’s military service. Id. The trial justice concluded that this analytical approach should
be employed with respect to plaintiff’s federal claims under the USERRA and also with respect
to his parallel state claims.
Neither party disputes the pertinence of the Velázquez-García analytical approach. The
dispute on appeal centers on the trial justice’s application of that analytical approach.
In the lengthy decision that she rendered on November 23, 2010, the trial justice
considered the testimony of seventeen witnesses, forty exhibits, and the post-trial memoranda
filed by the parties. She proceeded to find that Mr. Panarello had not met his burden of proving
that his absence due to military service was “a substantial or motivating factor” in the DOC’s
decision not to promote him to lieutenant in 2001 and 2002. Specifically, with respect to the
evidence that Mr. Panarello produced which he contended was indicative of anti-military bias in
the promotional process, she found that: (1) Director Wall’s testimony regarding his
conversation with plaintiff at the Providence Place Mall was the more credible version of events;
(2) David Caruso’s alleged comments regarding plaintiff’s military uniform at the 2001
interview were not demonstrative of bias; and (3) Walter Whitman’s comments regarding
plaintiff’s availability, while “ill-advised,” did “not rise to the level needed to prove
discrimination by the DOC * * * .” She held that there was no evidence that plaintiff’s
unavailability due to military service affected the score that Mr. Whitman accorded him after the
interview or that Mr. Whitman’s comments had any effect on the DOC officials (including
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Director Wall) who were responsible for reviewing the interview results and conducting second
interviews.
The trial justice further ruled that the DOC provided sufficient evidence to show: (1) that
plaintiff was not one of the best candidates in 2001 and 2002; and (2) that he was a “much-
improved” candidate in 2007. In 2001, according to the trial justice, the evidence showed that
plaintiff was not sufficiently knowledgeable about DOC policies and procedures. The trial
justice provided an example from the notes of Mr. Partridge, the chairperson of the 2001
interview panel; those notes state that Mr. Panarello had given a “shaky answer [and was] unsure
where to proceed;” they further state that, with respect to a question about policies and
procedures, plaintiff was “weak—not sure of answer. [V]ery broad * * * .” The trial justice also
cited Mr. Caruso’s notes, which stated that Mr. Panarello “lacked knowledge in minimum
standards” and “missed the most important points.”15 The trial justice further found that, by the
time of the 2007 interview process, plaintiff had received a bachelor’s degree in criminal justice
and had studied DOC policies and procedures in more depth. In view of the just-referenced steps
that plaintiff had taken to improve his fitness as a candidate, the trial justice ruled that the fact of
plaintiff’s success in the 2007 process did not serve as proof that “the DOC improperly used bias
in denying him promotion in 2001 and 2002.”
With regard to the temporary “three-day rule” promotion offered to Mr. Panarello in
2002, the trial justice found that a “three-day rule” position required immediate availability. She
also faulted plaintiff for failing to provide any evidence that “three-day rule” positions were ever
given to anyone on leave. Thus, she held that plaintiff had not met his burden of proving that his
15
In the passages quoted from the interview notes of Mr. Partridge and Mr. Caruso, we
have conformed the capitalization of letters.
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unavailability due to his military status was a consideration with respect to his appointment to a
“three-day rule” position in a manner that violated the USERRA.
The plaintiff timely filed a notice of appeal.
II
Standard of Review
When a trial justice presides over an action for declaratory judgment, the justice makes
“all findings of fact without a jury.” Houde v. State, 973 A.2d 493, 498 (R.I. 2009). We have
consistently held that our review of both a decision by the Superior Court granting or denying
declaratory relief and “the factual findings of a trial justice sitting without a jury is deferential.”
Pelletier v. Laureanno, 46 A.3d 28, 35 (R.I. 2012) (internal quotation marks omitted); Houde,
973 A.2d at 498; see also State v. Gianquitti, 22 A.3d 1161, 1165 (R.I. 2011) (“This Court
consistently has held that factual findings of a trial justice sitting without a jury are granted an
extremely deferential standard of review.”); Cahill v. Morrow, 11 A.3d 82, 86 (R.I. 2011) (“This
Court gives great weight to the factual findings of a trial justice sitting without a jury in a civil
matter * * * .”) (internal quotation marks omitted); Hagenberg v. Avedisian, 879 A.2d 436, 441
(R.I. 2005) (“A decision to grant or deny declaratory * * * relief is addressed to the sound
discretion of the trial justice and will not be disturbed on appeal unless the record demonstrates a
clear abuse of discretion or the trial justice committed an error of law.”). “If our review of the
record before us indicates that competent evidence supports the [trial] justice’s findings, we shall
not substitute our view of the evidence for his [or hers] even though a contrary conclusion could
have been reached.” Greensleeves, Inc. v. Smiley, 68 A.3d 425, 434 (R.I. 2013) (internal
quotation marks omitted). As such, we will not disturb a trial justice’s factual findings unless
they are “clearly erroneous or * * * the trial justice misconceived or overlooked material
- 18 -
evidence or * * * the decision fails to do substantial justice between the parties.” Cahill, 11 A.3d
at 86 (internal quotation marks omitted); see also Greensleeves, Inc., 68 A.3d at 433-34; Grady
v. Narragansett Electric Co., 962 A.2d 34, 41 (R.I. 2009). A trial justice’s assessment of
credibility is granted the same level of deference. Dowdell v. Bloomquist, 847 A.2d 827, 830
(R.I. 2004). The trial justice’s factual findings and credibility determinations are given
deferential review because they are made by “the judicial officer who has actually observed the
human drama that is part and parcel of every trial and who has had an opportunity to appraise
witness demeanor and to take into account other realities that cannot be grasped from a reading
of a cold record.” In re Dissolution of Anderson, Zangari & Bossian, 888 A.2d 973, 975 (R.I.
2006). We also accord deference to a trial justice’s “‘resolution of mixed questions of law and
fact, as well as the inferences and conclusions drawn from the testimony and evidence * * * .’”
Nye v. Brousseau, 992 A.2d 1002, 1008 (R.I. 2010) (quoting Houde, 973 A.2d at 498); see also
Haviland v. Simmons, 45 A.3d 1246, 1256 (R.I. 2012). However, in contrast to our deferential
review of factual findings and credibility determinations, we conduct a de novo review of a trial
justice’s “conclusions of law.” Gianquitti, 22 A.3d at 1165; Grady, 962 A.2d at 41.
III
Analysis
A
The Legal Framework
We commence our analysis by summarizing the relevant legal framework that will
control our subsequent scrutiny of the trial justice’s findings of fact and her conclusions of law.
Traditionally, in employment discrimination cases, this Court has applied the “three-part
burden-shifting paradigm set forth by the United States Supreme Court” in McDonnell Douglas
- 19 -
Corp. v. Green, 411 U.S. 792, 802-04 (1973). McGarry v. Pielech, 47 A.3d 271, 280 (R.I. 2012).
In such cases, we initially require a plaintiff to establish a prima facie case by proving four
elements: (1) that plaintiff is “a member of the protected class * * * ; (2) [that plaintiff] applied
for an open position; (3) [that plaintiff] was not selected; and (4) [that] the employer ‘filled the
position by hiring another individual with similar qualifications.’” Casey v. Town of
Portsmouth, 861 A.2d 1032, 1037 (R.I. 2004) (quoting Gu v. Boston Police Department, 312
F.3d 6, 11 (1st Cir. 2002)). Once the plaintiff has established a prima facie case, a rebuttable
presumption arises that the employer unlawfully discriminated against the plaintiff, and the
burden of production then “shifts” to the employer to articulate a nondiscriminatory reason for
the adverse employment action at issue. McGarry, 47 A.3d at 280; Neri v. Ross-Simons, Inc.,
897 A.2d 42, 49 (R.I. 2006). What “shifts” at this juncture is only the burden of production, not
the burden of persuasion. McGarry, 47 A.3d at 280. If the employer satisfies this burden of
production, the above-referenced presumption of discrimination “disappears.” Id. At that point,
the burden of proof then “fall[s] * * * upon the plaintiff to demonstrate that [the employer’s]
tendered explanation is only a pretext and that discrimination was the true motive underlying the
hiring decision.” Id. at 280-81.
It is important to note, however, that plaintiff’s declaratory judgment claim in this case
arose under the USERRA, which specifically addresses employment protections for members of
the armed services. The USERRA provides that “[a] person who is a member of, applies to be a
member of, performs, has performed, applies to perform, or has an obligation to perform service
in a uniformed service shall not be denied initial employment, reemployment, retention in
employment, promotion, or any benefit of employment by an employer on the basis of that
membership, application for membership, performance of service, application for service, or
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obligation.” 38 U.S.C. § 4311(a). The USERRA further reads in pertinent part: “An employer
shall be considered to have engaged in actions prohibited * * * under subsection (a), if the
person’s membership, application for membership, service, application for service, or obligation
for service in the uniformed services is a motivating factor in the employer’s action, unless the
employer can prove that the action would have been taken in the absence of such membership,
application for membership, service, application for service, or obligation for service * * * .”16
38 U.S.C. § 4311(c)(1). When it enacted G.L. 1956 § 30-11-3(b), the General Assembly adopted
all the protections of the USERRA for National Guard members on state active duty. 17
Consequently, the trial justice held that the traditional, McDonnell Doulgas three-part burden-
shifting paradigm was not applicable to USERRA cases—a ruling which the parties do not
contest on appeal.18 The burden-shifting paradigm to be applied in employment discrimination
claims under the USERRA is an issue of first impression for this Court. In discussing the
USERRA, its history, and the appropriate burden-shifting paradigm to be applied in USERRA
cases, we have been enlightened and assisted by looking to the First Circuit’s thoroughly
researched and well-reasoned decision in Velázquez-García, 473 F.3d at 17, for guidance, as did
the trial justice. See generally Shoucair v. Brown University, 917 A.2d 418, 426 (R.I. 2007)
16
The USERRA has been analyzed and discussed in a scholarly article entitled From the
Desert to the Courtroom: The Uniformed Services Employment and Reemployment Rights Act.
See Andrew Sparks, From the Desert to the Courtroom: The Uniformed Services Employment
and Reemployment Rights Act, 61 Hastings L.J. 773 (2010).
17
General Laws 1956 § 30-11-3(b) reads: “In addition to the provisions provided in this
section, all National Guard members on state active duty shall be entitled to the rights,
protections, privileges, and immunities offered under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) * * * .”
18
The trial justice also determined that plaintiff’s claim arose under 38 U.S.C. § 4311 of the
USERRA, rather than §§ 4312 and 4316. That ruling has not been appealed.
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(holding that it is appropriate to look to federal discrimination decisions for guidance); Casey,
861 A.2d at 1036.
In Monroe v. Standard Oil Co., 452 U.S. 549, 559 (1981), in which the United States
Supreme Court construed the statutory predecessor to the USERRA, the Court held that claims
of employment discrimination due to military status could succeed only if the employee could
show that any discrimination which he or she suffered was “solely” due to his or her military
status. See also Velázquez-García, 473 F.3d at 16. In response to the decision in Monroe,
Congress passed the USERRA. Id. The House of Representatives Report which accompanied
the new statute stated that the Supreme Court’s interpretation in Monroe of the legislative intent
behind the predecessor statute was in error. Id. (citing H.R. Rep. No. 103-65 at 24 (1994)
reprinted in 1994 U.S.C.C.A.N. 2449, 2457). Specifically, the Report indicated that the
Congressional intent as to the earlier statute had been that, once a prima facie case was
established, then the burden of proof was to be placed on the employer.19 Id. The House Report
“called * * * for the application of the burden shifting framework” set forth in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).20 Velázquez-García, 473 F.3d at 16.
The Transportation Management Corp. decision addressed unfair labor practice claims under the
National Labor Relations Act, and it set forth a burden-shifting paradigm in which “the
employee first has the burden of showing, by a preponderance of the evidence, that his or her
19
It should be noted that the First Circuit quoted the House Report in order to explain the
genesis of the USERRA and not to clarify the meaning of the statute, which it did not
characterize as ambiguous.
20
The Supreme Court’s 1983 ruling in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983) was abrogated in part by Director, Office of Workers’ Compensation Programs,
Department of Labor v. Greenwich Collieries, 512 U.S. 267, 276-78 (1994). The latter case
dealt specifically with a footnote in Transportation Management Corp. regarding the Supreme
Court’s interpretation of a section of the Administrative Procedures Act. It does not affect our
analysis in the instant case.
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protected status was ‘a substantial or motivating factor in the adverse [employment] action;’ the
employer may then avoid liability only by showing, as an affirmative defense, that the employer
would have taken the same action without regard to the employee’s protected status.” Leisek v.
Brightwood Corp., 278 F.3d 895, 899 (9th Cir. 2002) (quoting Transportation Management
Corp., 462 U.S. at 401).
In Velázquez-García, the First Circuit adopted the substantial or motivating factor test set
forth in Transportation Management Corp. for claims under the USERRA. Velázquez-García,
473 F.3d at 17. We are in full agreement as to the appropriateness of that test. It follows, as the
night the day, that we perceive no error in the trial justice’s decision to follow Velázquez-García
and apply the substantial or motivating factor test. In so doing, we find ourselves in the
company of the several federal Circuit Courts of Appeal that have addressed the issue to date.
See Petty v. Metropolitan Government of Nashville-Davidson County, 538 F.3d 431, 446 (6th
Cir. 2008); Velázquez-García, 473 F.3d at 17; Coffman v. Chugach Support Services, Inc., 411
F.3d 1231, 1238-39 (11th Cir. 2005); Gagnon v. Sprint Corp., 284 F.3d 839, 853-54 (8th Cir.
2002);21 Leisek, 278 F.3d at 899; Hill v. Michelin North America, Inc., 252 F.3d 307, 312 (4th
Cir. 2001); Sheehan v. Department of Navy, 240 F.3d 1009, 1014 (Fed. Cir. 2001); Gummo v.
Village of Depew, New York, 75 F.3d 98, 106 (2d Cir. 1996).
We hold, as did the First Circuit in Velázquez-García, that in a USERRA action there
must be an initial showing by an employee, by a preponderance of the evidence, that his or her
military status, or accompanying unavailability, was “at least a motivating or substantial factor”
21
The decision of the Court of Appeals for the Eight Circuit in Gagnon v. Sprint Corp., 284
F.3d 839, 853-54 (8th Cir. 2002) was abrogated on other grounds by Desert Palace, Inc. v. Costa,
539 U.S. 90 (2003). See Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 551 (8th Cir. 2005).
However, the Eighth Circuit’s decision to apply the two-part burden-shifting paradigm that is
also reflected in Velázquez-García is still good law.
- 23 -
in the adverse employment action.22 Velázquez-García, 473 F.3d at 17 (internal quotation marks
omitted); Transportation Management Corp., 462 U.S. at 401; see McLain v. Somerville, 424 F.
Supp. 2d 329, 334-35 (D. Mass. 2006) (holding that the USERRA prohibits discrimination based
on military status and the unavailability resulting from an individual’s service obligations). The
burden of proof then shifts entirely to the employer to show, by a preponderance of the evidence,
that the adverse employment action “would have been taken despite the [employee’s] protected
status.” Velázquez-García, 473 F.3d at 17 (internal quotation marks omitted).
B
The Trial Justice’s Decision
Although we have held that the trial justice’s ruling regarding the analytical approach that
should be applied in a case brought under the USERRA was not erroneous, plaintiff’s principal
bone of contention relates to the application of that standard to the facts of his case.
Accordingly, we now turn to the trial justice’s application of the substantial or motivating factor
test to the facts of the instant case.
1. The 2001 and 2002 Interviews
In addressing plaintiff’s contention that the trial justice improperly applied the USERRA
burden-shifting paradigm, we begin by reiterating that we conduct a de novo review of the trial
justice’s application of that burden-shifting paradigm. See Gianquitti, 22 A.3d at 1165. As
plaintiff correctly observes, it would be reversible error for a trial justice to apply the wrong
burden of proof. See, e.g., State v. Casey, 71 R.I. 30, 34, 41 A.2d 757, 759 (1945) (finding error
22
The First Circuit emphasized that the employee in a USERRA action need only show that
his or her military status was a motivating factor, rather than the motivating factor, as was
required in Monroe. Velázquez-García v. Horizon Lines of Puerto Rico, 473 F.3d 11, 17 (1st
Cir. 2007) (“The language of the statute and the legislative history make clear that the employee
need only show that military service was a motivating factor in order to prove liability * * * .”)
(emphasis in original) (internal quotation marks omitted).
- 24 -
in a trial justice’s application of a civil burden of proof in a criminal case); see also M.M. ex rel.
L.R. v. Special School District No. 1, 512 F.3d 455, 459 (8th Cir. 2008) (“Placing the burden of
proof on the incorrect party is reversible error unless the error relates to an immaterial issue.”)
(internal quotation marks omitted). However, in our judgment, the trial justice in the instant case
did not make such an error.
Initially, we must address plaintiff’s reading of Velázquez-García. To support his
argument that the wrong burden of proof was applied by the trial justice, Mr. Panarello avers that
this case mirrors what actually transpired in Velázquez-García. The plaintiff in Velázquez-
García, 473 F.3d at 14, had worked for an ocean shipping and transportation business. He
alleged that he was fired because of his military status. Id. at 15. The district court granted
summary judgment for the employer, but the First Circuit reversed, holding: (1) that the plaintiff
had produced sufficient evidence for a reasonable jury to conclude that his military service was a
motivating factor in his dismissal; and (2) that the district court, despite having properly
articulated the standard to be applied in a USERRA action, had erred when it “implicitly
follow[ed] the McDonnell Douglas framework” in determining that, even if the plaintiff had met
his initial burden, the employer had adequately demonstrated that it had a non-pretextual reason
for the plaintiff’s firing. Id. at 15, 17, 20.
While we have adopted the First Circuit’s burden-shifting approach in Velázquez-García,
we consider plaintiff’s suggestion that there is a parallel between the procedural travel of that
case and the travel of the instant case to be fatally flawed. It must be emphasized that the First
Circuit in Velázquez-García was reviewing the granting of a motion for summary judgment
rather than a trial justice’s decision after a full bench trial. The trial justice in the instant case
was tasked with determining whether plaintiff had shown by a preponderance of the evidence
- 25 -
that his military service was a substantial or motivating factor in the DOC’s failure to promote
him and, in turn, whether the DOC had met its burden of proof by a preponderance of the
evidence; by contrast, the district court in Velázquez-García, in ruling on a motion for summary
judgment, was required to determine whether there was a genuine issue of material fact
regarding the employer’s motivation in firing the plaintiff, and the district court was “constrained
to perform this function without passing upon the weight or credibility of the evidence.” Reniere
v. Gerlach, 752 A.2d 480, 482 (R.I. 2000); see also Velázquez-García, 473 F.3d at 15.
Consequently, Velázquez-García is simply not instructive with respect to the civil procedure
criteria that are pertinent to the instant case.
In order to properly analyze plaintiff’s contention that the trial justice improperly applied
the USERRA burden-shifting paradigm, we must briefly discuss the legal framework relating to
the employee’s substantial or motivating factor burden of proof. To meet the substantial or
motivating factor test, a plaintiff “need not show that [military status] was the sole cause” of the
employer’s actions, contrary to what plaintiff contends the trial justice required him to do, “but
rather that it [was] one of the factors that a truthful employer would list if asked for the reasons
for its decision.” Bunting v. Town of Ocean City, 409 F. App’x. 693, 695-96 (4th Cir. 2011);
Petty, 538 F.3d at 446; see Bradberry v. Jefferson County, Texas, 732 F.3d 540, 545 (5th Cir.
2013); see also 20 C.F.R. § 1002.22 (2006) (“The individual has the burden of proving that a
status or activity protected by USERRA was one of the reasons that the employer took action
against him or her, in order to establish that the action was discrimination or retaliation in
violation of USERRA.”). A plaintiff’s “[m]ilitary status is a motivating factor if the [employer]
relied on, took into account, considered, or conditioned its decision on that consideration.”
Coffman, 411 F.3d at 1238 (internal quotation marks omitted); see also Petty, 538 F.3d at 446.
- 26 -
As the DOC points out, a USERRA claim cannot be supported by “bare assertions of
discrimination.” See Becker v. Department of Veterans Affairs, 480 F. App’x. 988, 990, 991-92
(Fed. Cir. 2012); see also Vega-Colon v. Wyeth Pharmaceuticals, 625 F.3d 22, 28 (1st Cir. 2010)
(stating that, in a USERRA action, an employee must “show evidence of discrimination other
than the fact of non-selection and membership in the protected class”) (internal quotation marks
omitted). However, discriminatory intent or motivation may be proven by either direct or
circumstantial evidence; as one federal appellate court has stated, “Circumstantial evidence will
often be a factor in [USERRA] cases, for discrimination is seldom open [and] notorious.”
Sheehan, 240 F.3d at 1014. Other courts have held that discriminatory motivation on the part of
an employer can be inferred from circumstantial evidence regarding the “proximity in time
between the employee’s military activity and the adverse employment action, inconsistencies
between the proffered reason and other actions of the employer, an employer’s expressed
hostility towards members protected by the statute together with knowledge of the employee’s
military activity, and disparate treatment of certain employees compared to other employees with
similar work records or offenses.” Id.; see also Coffman, 411 F.3d at 1238.
Several federal Circuit Courts of Appeal have held that, in determining whether an
employee has proven that his or her military status was a substantial or motivating factor behind
the employer’s conduct, a court may consider all record evidence, not merely that evidence
which is supplied by the plaintiff; this includes the employer’s explanation for its actions.
Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 552 (8th Cir. 2005); Leisek, 278 F.3d at 900;
Sheehan, 240 F.3d at 1014. If the employee meets the substantial or motivating factor test, the
burden of proof shifts to the employer to show that it would have taken the same action
regardless of the employee’s military status; that is to say, its stated reason for taking the adverse
- 27 -
employment action was not a pretext. See Velázquez-García, 473 F.3d at 17 (“[T]he employer
must show, by a preponderance of the evidence, that the stated reason was not a pretext * * * .”)
(emphasis in original); see also Madden v. Rolls Royce Corp., 563 F.3d 636, 638 (7th Cir. 2009)
(Posner, J.) (“All that is meant is that if the [employer] had two reasons for taking an adverse
action against the [employee], one of them forbidden by [the USERRA] and the other not, and
the [employer] can show that even if the forbidden one had been absent the adverse action would
still have been taken, the [employee] loses.”).
The plaintiff argues, specifically, that the trial justice failed to properly apply the burden-
shifting paradigm laid out in Velázquez-García when she erroneously kept the burden of
persuasion on him at all times, requiring him to prove that the DOC’s legitimate reasons for not
promoting him were pretextual. Additionally, plaintiff maintains that the trial justice erroneously
required him to prove that discrimination was the “sole cause” of the DOC’s decisions not to
promote him—rather than a substantial or motivating factor.23
The DOC, on the other hand, contends that the trial justice did not err in finding in the
DOC’s favor. It asserts that the trial justice’s decision that plaintiff did not meet his burden of
proof by showing that his military status was a substantial or motivating factor in the DOC’s
failure to promote him was properly derived from her findings regarding witness credibility and
the weight of the evidence. Additionally, the DOC references case law stating that “stray
workplace remarks, as well as statements made either by nondecisionmakers or by
decisionmakers not involved in the decisional process, normally are insufficient, standing alone,
to establish either pretext or the requisite discriminatory animus,” and it posits that plaintiff
23
The plaintiff makes a final argument that, if the trial justice had applied the proper
burden-shifting paradigm, she would have found that plaintiff established a prima facie case of
discrimination in violation of the USERRA.
- 28 -
failed to present evidence showing that the stray military-related remarks made by Mr. Whitman
and Mr. Caruso were a substantial or motivating factor in the DOC’s ultimate decision not to
promote plaintiff in 2001 and 2002. Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir. 2002)
(internal quotation marks omitted); see also Lehman v. Prudential Insurance Co. of America, 74
F.3d 323, 329 (1st Cir. 1996) (“Isolated, ambiguous remarks are insufficient, by themselves, to
prove discriminatory intent.”); see generally Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 36
(1st Cir. 2001).
Before turning to plaintiff’s specific contentions, we take this opportunity to offer
guidance on the appropriate method of applying the Velázquez-García burden-shifting paradigm
in future USERRA cases. The trial justice in the instant case stated that her ultimate conclusion
was that plaintiff had not met his burden of showing that his military status and resulting
unavailability were a substantial or motivating factor in the decisions not to promote him in 2001
and 2002. In her rescript opinion, the trial justice did not expressly indicate that she was
applying the second part of the USERRA burden-shifting paradigm—namely, whether the
employer can show, by a preponderance of the evidence, that the same action would have been
taken despite the employee’s military status. Nevertheless, after carefully perusing that lengthy
decision in its entirety, it has become clear to us that, while the trial justice explicitly referenced
only the first part of the USERRA burden-shifting paradigm (the substantial or motivating factor
test), in actuality her analysis encompassed both parts of the burden-shifting paradigm. It is also
clear, as a matter of law, that the failure to explicitly discuss the two parts of the paradigm
separately does not render the trial justice’s decision erroneous. See Sheehan, 240 F.3d at 1015
(“Although the [lower court] did not separate the discrimination determination into two discrete
parts, for the first of which the complainant bears the burden of proof, and for the second of
- 29 -
which the employer bears the burden of proof, its decision as a whole followed the strictures of
the framework developed [for USERRA actions].”). However, it is our definite view that, in
future USERRA cases, it would be decidedly preferable that the two parts of the burden-shifting
paradigm be assessed separately. This model would begin with an analysis of the evidence
submitted by the employee and whether that evidence is sufficient to show, by a preponderance,
that the employee’s military service was a substantial or motivating factor in the employer’s
action; if the employee satisfies the first prong, the factfinder would then proceed to make an
independent analysis of the remaining evidence and whether that evidence is sufficient to show,
by a preponderance, that the employer has met its burden of proof by establishing that it would
have taken the same action regardless of the employee’s military service. See Velázquez-García,
473 F.3d at 17.
That being said, we now proceed to plaintiff’s first contention regarding what he
considers to be the trial justice’s inappropriate application of the USERRA burden-shifting
paradigm. The plaintiff submits that the trial justice erred when she was, according to plaintiff,
of the view that, if the DOC presented any evidence of a legitimate motive for not promoting
plaintiff, then she was not required to consider whether his military status was also a factor; in
other words, according to plaintiff, the trial justice required him to prove pretext and failed to
require the DOC to prove lack of pretext. The plaintiff points specifically to the following
statements by the trial justice: (1) “Plaintiff has failed to show by a preponderance of the
evidence that he was a superior candidate to those chosen for promotion in 2001 and 2002. That
failure is a sufficient reason not to promote a candidate. Military service would not have to play a
‘substantial or motivating factor’ for the panels to make the decisions made in 2001 and 2002;”
(2) “Plaintiff failed to show that his 2007 interview performance was equal to or worse than his
- 30 -
interview performances in 2001 and 2002;” and (3) “The DOC has provided sufficient evidence
that Panarello was not the best candidate for the promotion in 2001 and 2002. Therefore,
Panarello’s clothing did not have to come into consideration at all in the Department’s decision
to promote candidates other than Panarello to Lieutenant in 2001 and 2002.” We agree with
plaintiff that some of the statements made by the trial justice, when taken out of context, are less
than felicitously worded. However, the trial justice’s decision, when taken as a whole,
demonstrates that she applied the appropriate burden of proof.
After laying out her findings of fact and the legal framework to be applied, the trial
justice proceeded to discuss the motivating or substantial factor test with regard to plaintiff’s
2001 and 2002 interviews. She stated that plaintiff had “provided a series of gray facts that did
not reach the level of ‘motivating or substantial factor’ in consideration of his promotion to
lieutenant.” The trial justice did not fail to acknowledge Mr. Caruso’s statement regarding
plaintiff’s uniform and what she characterized as Mr. Whitman’s “ill-advised” statements to
plaintiff regarding his unavailability and its impact on his promotion, but she then proceeded to
find that there was no evidence that Mr. Whitman had factored plaintiff’s unavailability into his
score; and she also noted that plaintiff’s score was approximately at the average of the scores that
Mr. Whitman gave to all the applicants. Moreover, she found: (1) that there was no evidence
that Mr. Whitman’s views were considered at the time of the ultimate decision by Director Wall
as to whom to promote; and (2) that Mr. Caruso’s statement was not “demonstrative of bias
against [plaintiff’s] unavailability because of military obligations.”
Ultimately, based on the testimony of the interviewers regarding plaintiff’s qualifications,
which the trial justice discussed in detail, and the trial justice’s own credibility determinations,
she held that plaintiff had not been promoted because he was less qualified than those individuals
- 31 -
who were selected for promotion—and not because of (even partly) his military status. See
Mock v. Rome, 910 F. Supp. 2d 429, 432 (N.D.N.Y. 2012) (denying a plaintiff’s motion for a
judgment as a matter of law after a jury verdict in favor of the employer in a USERRA action
because a jury could have concluded, after making credibility determinations, that the employer
chose other individuals “more qualified and better suited for the position[]”). The trial justice
also gave credence to the testimony that illustrated how significantly improved plaintiff as a
candidate was in 2007, when he was ultimately promoted; and, taking that into account, she
found that his promotion after his return from military leave was not evidence that he was not
promoted in 2001 and 2002 due to his military unavailability. Thus, after ruling that Director
Wall’s testimony regarding his encounter with Mr. Panarello in 2000 was credible and weighing
the previously discussed statements by certain panel members in 2001 and 2002 against all the
other evidence on the record, especially the voluminous evidence tending to show that plaintiff
was not the most qualified candidate for promotion in 2001 or 2002, the trial justice ruled that
plaintiff had not met his burden. In the trial justice’s statements, contested by plaintiff, regarding
her determination that he had not provided any evidence to rebut the voluminous evidence that
he was not the most qualified for promotion in 2001 and 2002, the trial justice was not, as
plaintiff contends, improperly requiring him to prove pretext; she was appropriately taking all the
evidence on the record, from both parties, into account in making her conclusion. See Leisek,
278 F.3d at 900; Sheehan, 240 F.3d at 1014. We are unable to perceive any error in the trial
justice’s ultimate conclusion that plaintiff could not prevail on his USERRA claim.
The plaintiff further contends that, since the trial justice found that military absence was
referenced by some of the members of the 2001 and 2002 interview panels (specifically Mr.
Whitman, Ms. Getter, and Mr. Caruso), the trial justice erred in then finding that Mr. Panarello
- 32 -
had not met his burden. He asserts that the USERRA prohibits any consideration of military
unavailability; and he also contends that the USERRA burden-shifting paradigm does not require
a consideration of military unavailability to be the sole factor in the decision to promote him, but
rather only a factor in the decision. While plaintiff correctly asserts that the “USERRA is not a
sole motive test,” his approach to the standard seems to, in effect, remove the language
“substantial or motivating” from the burden of proof that he must meet. See Petty, 538 F.3d at
446 (holding that for military service to have been “[a] motivating factor does not mean that it
had to be the sole cause of the employment action [rather it had to be] one of the factors that a
truthful employer would list if asked for the reasons for its decision”) (internal quotation marks
omitted). The plaintiff takes the position that, if his military service or unavailability were taken
into account by any individual playing a role in the promotional process, then the requirements
of the USERRA have been met. However, we would reiterate that the first prong of the two-part
paradigm clearly requires that the plaintiff demonstrate that his military status was a substantial
or motivating factor in the employer’s decision. See Velázquez-García, 473 F.3d at 17. It does
not suffice for an employee to simply show that his military status was mentioned or noted by
someone in the promotional process. Id. Consequently, as we have already articulated, we
conclude that the trial justice did not err in her application of the USERRA burden-shifting
paradigm to the facts of the instant case regarding the 2001 and 2002 interview processes. The
plaintiff has additionally contended that the trial justice erred when she failed to conclude that
there was a causal nexus between the allegedly tainted promotional process and Director Wall’s
ultimate decision as to whom to promote. Given the conclusions we have already reached in this
opinion, we need not delve into that contention.
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2. The “Three-Day Rule” Position
The plaintiff further contends that there is error in the trial justice’s analysis of the “three-
day rule” issue. 24 He contends that the trial justice made a factual error in concluding that
availability was a legitimate factor in the filling of this temporary position. He further argues
that, because unavailability is never a permissible consideration under the USERRA, the trial
justice made a legal error in finding that the DOC could permissibly withdraw the position based
on plaintiff’s unavailability. Mr. Panarello points out: (1) that he was willing to leave his
military position to take the “three-day rule” position; (2) that, despite not giving him the
position because he was unavailable, the position was not officially filled until October of 2002;
and (3) that Director Wall testified that he would not have an issue with giving a “three-day rule”
position to a person on military leave. On appeal, the DOC does not challenge the fact that
plaintiff was not awarded the “three-day rule” position because of his military unavailability.
However, it contends that a prerequisite for someone to be appointed to such a position was that
that individual be available to start immediately.
The trial justice held that the DOC presented credible evidence that the “three-day rule”
position required immediate availability; she specifically cited the testimony of Mr. Truman—
“when there’s a known vacancy for an extended period of time and an agency desires to fill that
position while that person is away, it can be done by taking someone of lower rank and placing
[him or her] into that position.” The trial justice further referenced the fact that plaintiff had not
demonstrated that “three-day rule” positions were never given to individuals on military leave.
Upon review of the trial testimony and the trial justice’s decision, we conclude that there was no
error, either factual or legal, in her decision.
24
The rather arcane dispute about the “three-day rule” position is explained in detail in our
summary of the testimony of George Truman, Jr. in Part I.A.1, supra.
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Contrary to plaintiff’s contention, there was adequate evidence for the trial justice to
determine that immediate availability was a prerequisite for appointment to a “three-day rule”
position. In addition to the above-quoted testimony which the trial justice credited, Mr. Truman
also acknowledged that availability was a “prerequisite to a [‘three-day rule’] job[.]” He further
testified that, when filling a “three-day rule” position, the DOC is “not planning for the future,
[but it is] planning for next weekend and forward.” It was well within the trial justice’s
discretion to find Mr. Truman’s testimony about the “three-day rule” position the more credible
or complete evidence and, thus, find that immediate availability was a “basic requirement” of a
“three-day rule” position. See Cahill, 11 A.3d at 86 (holding that this Court will not disturb a
trial justice’s factual findings after a bench trial unless they are “clearly erroneous or * * * the
trial justice misconceived or overlooked material evidence”). Even if the “three-day rule”
position was not actually filled until October of 2002, as plaintiff testified, and a “three-day rule”
position could be given to someone on military leave, as Director Wall testified, we do not deem
that to constitute evidence of discrimination, especially in light of the trial justice’s finding that a
“three-day rule” position requires immediate availability. Thus, we detect no factual error in the
trial justice’s decision.
We are similarly not swayed by plaintiff’s contention that the trial justice committed an
error of law in finding that unavailability was a permissible consideration when filling a
temporary position under the USERRA. While an employer may not discriminate based on
military unavailability during a general promotional process, common sense dictates that this
rule simply should not apply to a temporary position. See State v. Bergevine, 883 A.2d 1158,
1159 (R.I. 2005) (mem.) (“‘That seems to us to be the common sense of the matter; and common
sense often makes good law.’”) (quoting Peak v. United States, 353 U.S. 43, 46 (1957)); see also
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State v. Lead Industries Association, Inc., 951 A.2d 428, 476 n. 51 (R.I. 2008). In the first place,
the trial justice found that the DOC required immediate availability for a “three-day rule”
position. Accordingly, anyone who was not immediately available would not be awarded the
position, regardless of the reason for his or her unavailability; therefore, the same prerequisites
were applied to every applicant. Moreover, it would put an impossible burden on employers if
they were required to wait weeks or months to fill a temporary position that involves only six
months of service. We do not construe the USERRA to require such an exercise in inefficiency,
nor do we perceive any error in the trial justice’s similar conclusion.
Consequently, we find no error in the trial justice’s determination that the DOC did not
violate the USERRA by not awarding Mr. Panarello the “three-day rule” position.
C
The Trial Justice’s Review of the Evidence
Mr. Panarello’s final contention is that the trial justice overlooked or misconceived
material evidence in reaching her decision, thus necessitating a reversal. Specifically, he refers
to: (1) evidence of similarly situated correctional officers (namely, Joseph Forgue, Jr. and John
Lavery), who plaintiff contends were also victims of discrimination; 25 (2) a memorandum in
evidence written from Tom Partridge, the chairperson of the 2001 interview panel, to Albert
Gardner, an assistant director at the DOC, which was ultimately forwarded to Director Wall;26
25
Mr. Forgue and Mr. Lavery testified at trial regarding the discrimination that they
allegedly suffered based on their military status, while in the employ of the DOC. See Part I.A.3,
supra.
26
The memorandum from Mr. Partridge to Mr. Gardner that is referenced in the text is
dated March 2, 2001; it was entered into evidence at the trial. It indicates that the following were
the reasons for not recommending a particular corrections officer (not plaintiff) for promotion:
“Presently on Workman’s [sic] Compensation. * * * The needs of this Department are immediate
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(3) the testimony of Ms. Getter regarding her alleged bias against plaintiff because he was on
military leave; 27 (4) evidence relating to the promotion of Correctional Officer Shayne
Chapman;28 (5) notes made by Mr. Caruso during the 2002 interview;29 and (6) the fact that,
according to plaintiff, Mr. Whitman’s statements at the panel interview in 2002 and at trial were
“illegal per se.”30
As is our consistent practice in reviewing a jury-waived trial, we will not disturb the trial
justice’s factual findings unless they are “clearly erroneous or * * * the trial justice misconceived
or overlooked material evidence * * * .” Cahill, 11 A.3d at 86. With the exception of the
statements of Mr. Whitman, the evidence which plaintiff contends was overlooked or
misconceived was not specifically alluded to by the trial justice in her decision. However, the
fact that she did not expressly reference every last bit of the evidence is certainly not
determinative of the issue. The trial justice need only discuss sufficient evidence for it to be
clear to this Court that the standard applied was appropriate. In our judgment, the trial justice in
* * * .” Before forwarding the memorandum to Director Wall, Mr. Gardner added the following
handwritten note (some punctuation and capitalization having been modified by us):
“I agree with the reasoning about not recommending [a named
candidate]. Also we would not have him on line he would be
another loss LT. on union business. [A second named candidate]
could be a good choice but not while on Comp. we still need LTs
that can be used on Line now.” (Emphasis in original.)
27
See Part I.B.1, supra.
28
Mr. Chapman was promoted to lieutenant while on military leave, after the DOC received
USERRA training in 2006. His rank after the panel interview in 2006 was similar to Mr.
Panarello’s rank in 2002: Mr. Chapman was ranked fifth out of eight candidates, and Mr.
Panarello had been ranked fifth out of seven candidates. Mr. Chapman was recommended for a
second interview and then promoted, despite having given a poor answer on a question regarding
DOC policy.
29
See Part I.B.4, supra.
30
See Part I.B.2, supra.
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this case carried out her fact-finding responsibilities in an assiduous and meticulous manner; and,
given the applicable standard of review, we perceive absolutely no basis for disturbing her
findings. The trial justice clearly reviewed all the evidence, both testimonial and documentary,
before rendering her decision. That decision explicitly states:
“Plaintiff presented twenty-one exhibits and the DOC submitted
nineteen exhibits to this [c]ourt. The [c]ourt heard testimony of
seventeen witnesses. Subsequent to trial, both parties submitted
post-trial memoranda. Based on the testimony and evidence, this
[c]ourt makes the following findings.”
Reasonableness is the watchword in this domain, and we are entirely satisfied that the trial
justice in this case did not in any meaningful way overlook or misconceive evidence such that a
new trial should be granted. See Lead Industries Association, Inc., 951 A.2d at 476 n. 51.
Lastly, the testimony of Mr. Whitman was specifically discussed by the trial justice. The
plaintiff argues that the statements of Mr. Whitman, regarding plaintiff’s unavailability and its
impact on his chances for promotion were, in his words, “discriminatory per se” and “per se
illegal”—something, which plaintiff submits was overlooked by the trial justice. 31 However,
even assuming arguendo that the statements were “discriminatory per se,” that would not mean
that the statements were “per se illegal” or that plaintiff had thereby met his burden of proof
under the USERRA; he was required to show that his military status was not merely a factor, but
a substantial or motivating factor in the decision not to promote him. Such regrettable statements
by a single panelist (which the trial justice characterized as “ill-advised”) do not necessarily
mean that plaintiff’s military status and unavailability were a substantial or motivating factor in
31
It should be noted that the trial justice found that Mr. Whitman’s comments did not prove
discrimination by the DOC because they were not “blatantly discriminatory.” The plaintiff
challenges the applicability of a “blatantly discriminatory” standard. However, even if we
assume that the statements were “discriminatory per se,” as plaintiff urges, we still conclude that
the trial justice did not overlook or misconceive the evidence; Mr. Whitman’s statements were
properly considered by the trial justice during her analysis and weighing of the evidence.
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the ultimate decision about promotion. Thus, we perceive no indication that the trial justice
misconceived Mr. Whitman’s testimony. Moreover, the trial justice clearly took Mr. Whitman’s
comments into account when weighing the evidence and determining whether the DOC had
discriminated against plaintiff in violation of the USERRA. She specifically referenced Mr.
Whitman’s comments in both the “Factual Findings and Travel” section and the “Analysis”
section of her decision; she noted that Mr. Whitman’s comments were “improper and inaccurate
in light of the protections of the USERRA * * * .” There is nothing in the record that would
incline us to second-guess the trial justice’s determination regarding what evidence and
testimony were most credible and persuasive. See State v. Guerrero, 996 A.2d 86, 90 (R.I. 2010)
(stating that, because this Court is “relegated to reading from a lifeless record, [we] justifiably
defer to trial justices who experience firsthand the delivery and demeanor of a witness’s
testimony”) (internal quotation marks omitted); see also State v. Medeiros, 996 A.2d 115, 122
(R.I. 2010); State v. Collazo, 967 A.2d 1106, 1110 (R.I. 2009). Accordingly, we conclude that
the trial justice did not overlook or misconceive any material evidence.
Consequently, we affirm the decision of the trial justice denying the plaintiff’s claim for a
declaratory judgment because the plaintiff failed to show that his military status or resulting
unavailability was a substantial or motivating factor in the DOC’s repeated decisions not to
promote him, whereas the DOC for its part succeeded in proving that it would not have promoted
the plaintiff even if he had not been on military leave. We further hold that the trial justice did
not overlook or misconceive any material evidence in the case.
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IV
Conclusion
We affirm the judgment of the Superior Court that the DOC did not discriminate against
Mr. Panarello due to his military status, in violation of the USERRA. The record may be
returned to that tribunal.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Donald Panarello v. State of Rhode Island, Department of
Corrections et al.
CASE NO: No. 2011-105-Appeal.
(PC 03-5569)
COURT: Supreme Court
DATE OPINION FILED: April 7, 2014
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice William P. Robinson III
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Presiding Justice Alice B. Gibney
ATTORNEYS ON APPEAL:
For Plaintiff: Carly Beauvais Iafrate, Esq.
For State: Rebecca T. Partington
Department of Attorney General