Berlin Seeks Wrongful Termination Lawsuit Dismissal

BERLIN -- Less than a week after the Berlin Mayor and Council voted to cease all financial aid to its fire department ,citing hostile working conditions and hints of discrimination and harassment, town officials filed a motion to dismiss a lawsuit at the heart of the issue.

In May, the town terminated EMS supervisor Norris Phillip Donohue, Jr. after 23 years on the job after at least two EMS employees filed formal complaints about alleged workplace harassment and discrimination. The allegations of harassment and discrimination in the EMS department of the Berlin Fire Company (BFC) were cited as a primary reason for the town’s decision last week to pull all funding for the entire fire company. However, the BFC alleges the town’s decision to defund it was based on control of the scheduling and operations.

In July, Donohue filed a civil suit against the Mayor and Council, seeking at least $200,000 and alleging the elected officials, through Town Administrator Tony Carson, did not have the authority to terminate, or even discipline, him over allegations of harassment and discrimination. He said that authority wrested with his immediate supervisors, the fire chief and the fire company president.

In 2009, the town and its fire company entered an agreement under which paid EMS personnel were leased to Berlin as a means of making them eligible for state retirement and benefits. Berlin has asserted the “lease” arrangement puts the paid EMS personnel under the direction and supervision of the town and subject to the same personnel policies and employee handbook as other town employees.

When Donohue was named in formal complaints filed by at least two EMS employees with allegations the nature of which have still not been made public, he was suspended without pay for 30 days on April 2 and was informed that upon return to work on May 2, he would be demoted to EMS-paramedic. Donohue then filed a formal grievance about the disciplinary action and was terminated by the town shortly thereafter. At issue is who exactly has the authority to discipline, or in this case terminate, paid EMS personnel.

“At all times relevant before and after the agreement, Donohue’s supervisors were the chief and the president of the fire department,” the complaint reads. “Donohue had little or no interaction with the Mayor and Council.”

The complaint says Donohue was shocked by the disciplinary action for a number of reasons. First, since he was hired by the fire department, he had been informed his chain of command was the chief, the president and lastly the Mayor and Council.

Secondly, Donohue alleges in the complaint he was never notified in writing of his alleged actions or inactions after he had been interviewed by the town administrator on April 5 about claims of harassment made by two EMS employees. Finally, in his 23 years of employment with the fire department, Donohue had never received any type of infraction, warning or disciplinary action.

“Donohue filed a grievance with the fire chief and town administrator and proclaimed his innocence of any misconduct that might give rise to discipline and challenged the town administrator’s authority to impose a suspension without pay and demotion,” the complaint reads. “The Mayor and Council coerced the fire department to effectuate that termination by threatening to cut off all Mayor and Council funding to the fire department if it continued to employ Donohue.”

In short, Donohue’s suit against the town’s elected officials alleges the Mayor and Council has no authority to terminate his employment as he is an employee of the fire department and merely leased to the Mayor and Council; his termination was explicitly retaliatory in that it followed immediately upon his grievance; and there were otherwise no grounds for his termination.

On Monday, however, the town filed a motion to dismiss the suit, or in the alternative, a granting of summary judgment.

“The town’s actions were based on a finding that the plaintiff had violated town policies regarding employee conduct both by direct action against other employees and also failing to act in his supervisory capacity to prevent misconduct,” the motion to dismiss reads. “The Mayor and Council shall have primary direction and control over paid EMS personnel through its town administrator and in accordance with the town of Berlin’s personnel policies and manual.”

In short, the town’s motion for dismissal contends it has the authority to discipline or terminate those under the lease agreement with the fire company.

“The employee handbook does not constitute an express or implied contract as it expressly states that employment is ‘at will’ and that the town reserves the right to dismiss or discipline employees at any time,” it reads. “For all the foregoing reasons, the Mayor and Council is entitled to a dismissal of the plaintiff’s complaint, or in the alternative, summary judgment should be granted to the Mayor and Council as there is no genuine dispute under law.”