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Passaro v. Commonwealth

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

June 21, 2018

ANTONIO PASSARO JR., Plaintiff,
v.
COMMONWEALTH OF VIRGINIA & VIRGINIA DEPARTMENT OF STATE POLICE, Defendants.

          OPINION AND ORDER

          DOUGLAS E. MILLAR UNITED STATES MAGISTRATE JUDGE

         In this employment discrimination action, the Defendants, the Commonwealth of Virginia and the Virginia Department of State Police, seek summary judgment on all claims brought by the Plaintiff, Antonio Passaro Jr. The Defendants argue a prior final judgment from the Circuit Court for the City of Chesapeake, Virginia, bars the claims Plaintiff pursues in the present case. For the reasons explained below, the claims decided against Passaro in the prior judgment arose out of the same conduct as the claims in the present case, and the Defendants have not waived the benefit of claim preclusion. Consequently, the court will GRANT the Defendants' Motion for Summary Judgment (ECF No. 31).[1]

         I. BACKGROUND.

         Because the Motion for Summary Judgment largely turns on the procedural history of Passaro's two employment cases, the events underlying the dispute are only summarized briefly below. All facts are considered in the light most favorable to Passaro as the non-moving party to this summary judgment motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986).

         Passaro was employed as a law enforcement officer with the Department from 1997 to his termination in 2013. See EEOC Charge (ECF No. 13-1); Decision of Hearing Officer at 1, 16 (ECF No. 32-3). Passaro's national origin is Italian. EEOC Charge (ECF No. 13-1). With the State Police, he served as a special agent investigating "high technology crimes." Decision of Hearing Officer at 2 (ECF No. 32-3). High technology crimes dealt largely with the possession and manufacture of child pornography. Id. at 9. In the course of these investigations, he claims he "'had to download up to 39, 000 images and hundreds of videos [of child pornography].'" Id. (quoting Grievant Ex. 10[2]). In September 2012, Passaro was diagnosed with post-traumatic stress disorder from having to repeatedly view child pornography in the course of his employment. Id. Passaro received numerous disciplinary notices and counselings for unsatisfactory performance both before and after his diagnosis for PTSD and prior to his termination. See Id. at 3. His supervisors accused him of making a false official statement, not following his supervisor's instructions or policies, theft, and damaging state property or records. Decision of Hearing Officer at 1 (ECF No. 32-3). The Department issued a notice to terminate Passaro for theft and damaging state property or records in March 2013. As permitted under state law, Passaro exercised his right to grieve the termination, and in June 2013, an administrative hearing officer reviewed the proposed termination under the procedures prescribed in Virginia Code §2.2-3000. See id.

         Hearing officers appointed to consider employment grievances have extensive authority to resolve the dispute, including the authority to

1. Hold conferences for the settlement or simplification of issues;
2. Dispose of procedural requests;
3. Issue orders requiring testimony or the production of evidence;
4. Administer oaths and affirmations;
5. Receive probative evidence; exclude irrelevant, immaterial, insubstantial, privileged, or repetitive proofs, rebuttals, or cross-examinations; rule upon offers of proof; and oversee a verbatim recording of the evidence;
6. Receive and consider evidence in mitigation or aggravation of any offense charged by an agency in accordance with rules established by the Department of Human Resource Management...; and
7. Take other actions as necessary or specified in the grievance procedure.

         Va. Code § 2.2-3005(B). That hearing officer has the authority to review

a complaint or dispute by an employee relating to the following adverse employment actions in which the employee is personally involved, including but not limited to (i) formal disciplinary actions, including suspensions, demotions, transfers and assignments, and dismissals resulting from formal discipline or unsatisfactory job performance; (ii) the application of all written personnel policies, procedures, rules and regulations where it can be shown that policy was misapplied or unfairly applied; (iii) discrimination on the basis of race, color, religion, political affiliation, age, disability, national origin or sex; (iv) arbitrary or capricious performance evaluations; (v) acts of retaliation as the result of the use of or participation in the grievance procedure or because the employee has complied with any law of the United States or of the Commonwealth, has reported any violation of such law to a governmental authority, has sought any change in law before the Congress of the United States or the General Assembly, or has reported an incidence of fraud, abuse, or gross mismanagement; and (vi) retaliation for exercising any right otherwise protected by law.

         Va. Code § 2.2-3004. The hearing officer must produce a written opinion explaining her decision and has the authority to order reinstatement, back pay, full reinstatement of "fringe benefits, " mitigation or reduction of the agency disciplinary action, or "any ...


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