Fed Judge Dismisses OCPD Wrongful Termination Suit

OCEAN CITY – Citing several failed attempts at the favorable result at different levels, and noting the plaintiff’s complaint does not meet any of the standards for a “constructive discharge,” a federal court judge this week dismissed the lawsuit filed in March by a long-time Ocean City Police Department (OCPD) officer against his former employer, alleging his need to find time to eat on the job resulted in his wrongful termination in July 2007 in violation of his Americans with Disabilities (ADA) rights.

Former OCPD officer David Catrino, through his attorney Robin Cockey, in March filed suit in U.S. District Court seeking injunctive relief and an undisclosed award of compensatory and punitive damages against the town for wrongly denying him a reasonable accommodation to which he believes he was entitled under the ADA. In short, Catrino, who has diabetes, alleges he was dismissed in July 2007 when he left his post to go home and eat shortly before his scheduled shift was set to expire.

According to the complaint, Catrino continued to work with the requested accommodation without incident until July 21, 2007, when his supervisor, Corporal Albert Custer, “knowingly required him, under Mr. Catrino’s protestations, to continue to work in a non-emergency situation without food.” Essentially, the case, which has been heard on several levels already, each time going against Catrino, boils down to a determination of whether the former officer voluntarily resigned when he left his position early, or whether the town wrongfully terminated Catrino in violation of his ADA rights.

On July 21, 2007, Catrino alleged after working several hours in summer heat, he began to feel ill. Plaintiff requested a fellow officer complete the arrest of a driver he had pulled over so he could get a meal. On his way to get food, however, Custer ordered the plaintiff to report to the Public Safety Building. When Catrino explained he needed to eat and asked the meeting be postponed, his request was denied. According to the amended complaint, Catrino did go to the Public Safety Building as ordered, only to learn he had been summoned “for no reason whatsoever.”

According to the complaint, Custer than ordered Catrino to report to the foot of the Route 50 bridge for a non-emergency task. Catrino said in the complaint he completed the task and then, out of medical necessity, left his post to go home shortly before his scheduled shift was set to expire. The defendant took the position that Catrino’s leaving his post was a voluntary resignation and refused to allow the plaintiff to return to work, according to the complaint. Catrino adamantly denied he voluntary separated from his employment, asserting instead he was constructively discharged in violation of his ADA rights.

According to Senior U.S. District Judge William Nickerson’s formal order dismissing the case filed on Wednesday, Catrino’s claim he was constructively discharged from the OCPD does not meet the standard on several fronts. For example, the judge pointed out the OCPD accommodated Catrino’s special needs in the months leading up to the incident in question.

“Here, the plaintiff bases his constructive discharge claim on a single incident where the defendant failed to accommodate his disability,” the judge’s order dismissing the case reads. “He acknowledges in his amended complaint that up until that single incident, the defendant had fully accommodated his diabetes.”

According to the dismissal opinion, Catrino’s claim he was constructively discharged does not meet on of the most important standards for such a claim, which include working conditions so unbearable an employee has little or no recourse but to resign.

“Even accepting as true the plaintiff’s allegation and drawing all inferences in his favor, the court cannot find that this allegation could possibly support a constructive discharge claim,” the judge’s opinion reads. “Not only do these allegations not meet the requisite objective standard, that a reasonable person in the plaintiff’s position would have felt compelled to resign, they do not appear to even meet a subjective standard.”

The judge’s order for dismissal goes on to read, “By vehemently denying that he ever intended to resign his position in response to this event, he undermines the conclusion that even he felt this incident made the conditions of his employment intolerable,” the opinion reads. “Because the amended complaint fails to state a claim under the ADA, the defendant’s motion to dismiss the case must be granted.”

Nickerson also pointed out Catrino had unsuccessfully presented his case at various levels prior to filing a complaint in U.S. District Court. Catrino first presented his case in front of a neutral arbitrator as part of the collective bargaining agreement between the Fraternal Order of Police (FOP) and the town.

However, after the arbitrator ruled against Catrino and in favor of the town, the former officer filed a civil suit in Worcester County Circuit Court in an attempt to reverse the decision. That court issued a judgment against the former officer and confirmed the arbitrator’s decision, setting the stage for the formal complaint at the U.S. District Court level, which ended this week.