Judge Denies Resort’s Motion To Dismiss Ex-Cop’s Suit

OCEAN CITY — The lawsuit filed by a former Ocean City Police Department (OCPD) employee against his former employer was allowed to go forward this week after a U.S. District Court judge denied the town’s motion for summary judgment in the case.

Former OCPD officer David Catrino in 2009 filed suit in U.S. District Court against the department and the town seeking injunctive relief and an undisclosed award of compensatory and punitive damages against the defendants for wrongly denying him a reasonable accommodation to which he believes he was entitled to under the Americans with Disability Act (ADA).

In short, Catrino, who has diabetes, alleges he was dismissed in July 2007 when he left his post to eat to meet the needs of his condition before his scheduled shift was set to expire.

Throughout the case, the town has successfully argued its case at the Worcester County Circuit Court level, and at arbitration and ultimately the Maryland Court of Appeals, but Catrino has taken his complaint to the U.S. District Court. Earlier this year, the town filed a formal motion to dismiss the suit at the federal level, alleging Catrino voluntarily resigned his position in July 2007, citing a section in the employee handbook that reads “an employee who verbally quits and walks off the job will be seen to have voluntarily terminated.”

Ocean City has contended from the beginning Catrino’s conduct in July 2007 amounted to a voluntary termination. It was only after his supervisors accepted his resignation and terminated his employment that Catrino “changed his story and claimed he was feeling the affects of diabetes.”

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. On his way to get food, however, his supervisor, Sgt. Albert Custer, ordered the plaintiff to report first to the Public Safety Building and then to the foot of the Route 50 bridge. 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 town took the position that Catrino’s leaving his post was a voluntary resignation and refused to allow the plaintiff to return to work. Catrino adamantly denied he voluntary separated from his employment, asserting instead he was constructively discharged in violation of his ADA rights.

This week, U.S. District Court Judge William Nickerson denied the town’s motion to dismiss the case, opining the evidence did not support the claim Catrino voluntarily resigned his position.

“Based on all this evidence, a trier of fact could easily conclude that, by the end of the day on July 21, 2007, no one in the OCPD, including Custer, believed that the plaintiff had expressed an intent to quit his job after 13 years on the police force,” the opinion reads. “A finder of fact could also conclude, based on the evidence, that the decision to treat the plaintiff as though he had resigned was made two days earlier by Chief DiPino.”

The judge implied the effort to get rid of Catrino started before the incident on July 21.

“In addition, it would appear that, while DiPino may have jumped on the opportunity to get rid of the plaintiff, it was for reasons other than his medical condition,” the opinion reads. “Although perhaps a close call, the court will deny the defendant’s motion as to the wrongful discharge claim as well. Accordingly, the defendant’s motion will be denied.”