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Ward v. Town of New Milford

United States District Court, D. Connecticut

March 29, 2018

MICHAEL S. WARD, Plaintiff,
v.
TOWN OF NEW MILFORD, Defendant.

          RULING GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          JANET BOND ARTERTON, U.S.D.J.

         Plaintiff Michael S. Ward filed his single-count complaint on April 21, 2016, alleging Defendant Town of New Milford discriminated against him on the basis of a perceived disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 1212. Defendant now moves [Doc. # 35] for Summary Judgment. Oral argument was held on February 9, 2018. For the following reasons, Defendant's Motion is granted.

         I. Background

         Plaintiff was hired by Defendant as a probationary police officer in the New Milford Police Department ("NMPD") on April 4, 2014. (Def.'s Loc. R 56(a) 1 Stmt [Doc. # 34-1] ¶ 1; Pl's Loc. R 56(a)2 Stmt [Doc. # 42-3] ¶ l.)[1] He successfully completed basic training at the Connecticut Police Academy and, on September 20, 2014, entered the NMPD Field Training Officer (FTO) Program, which is overseen by NMPD Sergeant Dzamko. (Id. at 24-26; see also Ex. D (Boyne Depo.) to Def.'s Mot. for Summ. J. [Doc. # 35-5] at 21-22.) After each field training shift, the FTO[2] prepares a Daily Observation Report ("DOR") to document the strengths and weaknesses demonstrated by the field trainee; the two of them then review and sign the DOR. (See Ex. C (Dzamko Depo.) to Def.'s Mot. for Summ. J. [Doc. # 35-4] at 53-55; Ex. H (DORs) to id. [Doc. # 35-11].)

         Between September 20 and October 25, 2014, Plaintiff successfully completed Phase 1 (75% training/25% evaluation) of the Program. (LR 56 ¶ 4.) Between October 28 and November 28, 2014, he completed Phase 2 (50% training/50% evaluation) of the program, despite experiencing some performance issues. (LR 56 ¶ 5; Ex. J to Def.'s Mot. for Summ. J. [Doc. # 34-3] and Ex. 5 (Dr. Stern Report) to Pl's Opp'n [Doc. # 42-8] at 3.)[3]

         Plaintiff was then advanced to Phase 3 of the field training, which he began on November 30, 2014 with assigned Field Training Officer ("FTO") Taranto. (LR 56 ¶ 6.) Phase 3 consists of 25% training and 75% evaluation, and Plaintiff was expected to complete it on December 27, 2014. (Ex. N (Letter to Boyne) to Def.'s Mot. for Summ. J. [Doc. # 34-5] at 5.) During this Phase, Plaintiff felt very fatigued and experienced issues with remembering basic tasks and skills that he had been able to perform earlier in his field training. (Id. at 26-27.) The DORs prepared by Officer Taranto in December of 2014 show that Plaintiff could not and/or would not perform basic tasks, locate and drive to landmark locations within Town, and complete reports in a timely manner. (LR 56 ¶ 7.)

         Officer Taranto also discovered that Plaintiff had called in "sick" on December 12, 2014 to prepare for a military obligation. (See Ex. N to Def.'s Mot. for Summ. J. at 5-6.) When he confronted Plaintiff about this departmental violation, Plaintiff "broke down." (Id.; see also Dzamko Depo at 34:5-9.) Subsequently, on December 19, Sergeant Dzamko met with Deputy Chief Buckley to discuss Plaintiff, and Dzamko advised Buckley he was going to "un-plug"[4] Plaintiff from the FTO Program and re-assess how to train and evaluate him. (Ex. N to Def.'s Mot. for Summ. J. at 6; Dzamko Depo. at 51-60.)

         While still on "unplugged" status, Plaintiff woke up with a sore throat, called out sick on January 5 and 6, 2015 (LR 56 ¶ 9), and went to his primary care physician, who diagnosed him with mononucleosis ("mono") (Ex. A to Def.'s Mot. for Summ. J. [Doc. # 35-2]; Ex. 1 (Pl's Depo.) to Pl's Opp'n [Doc. # 42-4] at 27:12-17; Ex. K (Mono Diagnosis) to Def.'s Mot. for Summ. J. [Doc. #34-4].)[5]

         On January 6, Deputy Chief Buckley was informed by Officer Taranto of a note that had recently been written by Plaintiff, [6] stating:

I feel that when I first started it was too much too fast. Instead of doing a little here a little there it was as if I was expected to already know what I was supposed to do. I do not think that I was able to take in as much information as I would have liked to in the beginning. As a result at this point in time I feel very over whelmed [sic]. Being so overwhelmed has caused me to not be able to retain information along the way. I want to be here and I want to learn. I am trying the best I can to keep up the pace with everything. If I do not succeed at this job I do not know what else I would do. This is everything I have ever dreamed of doing. I do accept that I have made wrong choices in the past in regards to a lot of things whether it be time management, sick days, personal life. I apologize for all of this and I hope that I can overcome all of this and be better at working here.

(LR 56 ¶ 12; Ex. I (Pl's Note) to Def.'s Mot. for Summ. J. [Doc. # 34-2].) The note was found by Officer Taranto in Plaintiffs notebook, which he had retrieved from Plaintiffs mail slot to reference while he filled out FTO paperwork. (See Ex. N to Def.'s Mot. for Summ. J. at 8; Ex E to Id. at 39:5-ll.)[7]

         On January 7, the note was brought to the attention of Chief Boyne, who met with Deputy Chief Buckley and the Town's personnel director to discuss their plan for Plaintiff. (LR 56 ¶ 13.) Chief Boyne testified that he was concerned about "self-harm" after reading Plaintiffs note. (Boyne Depo. at 145:3-6.) It was decided that Plaintiff, who had been out of work since January 4, would be placed on paid administrative leave so professionals could confirm his physical and psychological fitness for duty. (LR 56 ¶ 13.) Plaintiff was notified of this in writing that day. (Id. ¶ 14.) Defendant put Plaintiff on administrative leave because of the note and because "[w]e were coming to find out that there were some performance issues that he wasn't doing very well in." (Buckley Depo. at 47:18-21.) Defendant wanted to make sure Plaintiff was "okay psychologically." (Id. at 47:22-23.)

         On January 13, 2015, while out on leave of absence, Plaintiff was evaluated by Michael L. Stern, PhD, to whom he was referred by the Town. (LR 56 ¶ 15; Pl's Depo. at 47-52; see also Dr. Stern Report.) During the evaluation, Plaintiff acknowledged "experiencing some performance issues during his Phase 2 training, " and that he had "difficulty retaining information, maintaining concentration, and maintaining focus." (See Dr. Stern Report at 3.) Plaintiff "attributed his fatigue and performance difficulties to the undiagnosed occurrence of mono." (Id.) Plaintiff also said the "wrong choices" referenced in his note included "his poorly conceived decision to call out sick to have additional time to prepare for his National Guard exercises." (Id.)

         By the time of Dr. Stern's evaluation, Plaintiff had returned to full physical health, and reported that he "no longer experiences the fatigue, memory problems and concentration problems" that plagued him before he was placed on leave. (Id. at 4; see also Pl's Depo. at 48:7-12.) Dr. Stern's report concluded: "[a]t this time there are no significant concerns presented in terms of [Plaintiffs] psychological functioning that would preclude his being considered qualified for return to duty." (Dr. Stern Report at 4.) Documentation confirming Plaintiffs physical and psychological fitness for duty was received by the department, and he was authorized to return to work on January 23, 2015. (See Ex. P (Email from Personnel Dep't) to id. [Doc. # 35-17].)

         On January 23, 2015, when Plaintiff returned to work, according to Defendant, he remained "unplugged" and observed several shifts before beginning Phase 3 training anew with newly assigned FTO Officer Masi. (Def.'s Loc. R. 56 Stmt. ¶ 19.) Plaintiff denies being unplugged. (Pl's Loc. R. 56 Stmt, ¶ 19.)

         Sergeant Dzamko testified that when Plaintiff returned from administrative leave, "part of the unplugged process" included Plaintiff just riding with the officer for a "few days or maybe a week" and "then slowly going back into the FTO-phased program of gradually taking on a greater workload." (Dzamko Depo. at 44:6-13.)[8] Dzamko stated: "We brought him back prior to FTO, even before Phase 1, just riding with the veteran trainers so that he could have an opportunity to see how a veteran officer handles the calls. And ... it was explained [that] we were going to ease him back into" the training. (Dzamko Depo. at 47:4-16.) Additionally, the first four DORs after Plaintiff returned to work all leave blank the section in which the "Phase" is indicated (see DORs at 1110-16), and Dzamko testified that if a trainee is unplugged and not actively training in any Phase, these areas "could be [left] blank" (Dzamko Depo. at 57:5-8).

         On the other hand, Plaintiff points to FTO Masi's testimony that when Plaintiff came back, Masi "was [directed] to continue his Phase 3" training. (Ex. 3 to Pl's Opp'n [Doc. # 42-6] and Ex. F (Masi Depo.) to Def.'s Mot. for Summ. J. [Doc. # 35-9] at 33:3-4.) Masi stated that he would have begun the training with Plaintiff as "the primary officer riding in the passenger seat [and] . . . tak[ing] whatever work came their way." (Id. at 29:2-5.)[9]

         At no time while he observed or later field trained with FTO Masi, did Plaintiff experience or complain of any symptoms of ill-health. (LR 56 ¶ 20.) Masi testified that he had not been told about Plaintiffs mono diagnosis or psych evaluation and that he had no knowledge that Plaintiff had already been in Phase 3 prior to taking administrative leave. (Masi Depo. at 15:2-16:1, 19:4-22, 21:23-22:10; 34:22-35:7.)[10] Although he was deemed physically and psychologically fit for duty by a qualified professional, Plaintiffs performance remained below the minimum standards expected in Phase 3. (See Dzamko Depo. at 63:2-65:17.) Plaintiffs myriad performance deficiencies are catalogued throughout the DORs prepared by Officer Masi, [11] and Masi ultimately chose not to recommend that Plaintiff proceed to Phase 4. (LR 56 ¶ 21; See DORs at 1155.)

         On February 21, 2015, FTO Masi prepared an "End of Phase Evaluation Summary" regarding his training of Plaintiff in Phase 3. The evaluation provides in part:

PPO Ward has demonstrated poor officer safety tactics on numerous occasions and it is the opinion of this FTO that [Ward] has failed to retain FTO input as to this shortcoming. [He] has also shown a consistent inability to perform under even moderate stress, and becomes flustered easily, and as a result, cannot multitask...has shown an inability to retain pertinent information, e.g., tactics, commonly-used statutes and PD policies and procedure. Consistently marked insufficient in pro-active patrol; does not see or chooses not to address violations.

(DORs at 1155.) Officer Masi concluded that, "[b]ased solely on observed performance . . . PO Ward is at this time unable to function as a fully-trained, solo police officer, and it is not recommended that he move to the next phase of his FTO training." (Id.) At his deposition, Officer Masi explained that a "recruit is recommended for advancement or a recruit is recommended for remedial extension, I chose remedial extension. . . . That means that I don't believe he should be passed on to the next phase." (Masi Depo. at 38:13-20.)

         On February 22, 2015, Plaintiff was re-assigned to FTO Officer Kenney, who had more than twenty years of law enforcement experience, the most of any FTO in the NMPD at that time. (LR 56 ¶ 22.) Chief Boyne explained that he wanted "a new set of eyes" or "another opinion" to make sure it was not an issue of differences in personality. (Boyne Depo. at 116:14-19.) However, Officer Kenney also did not recommend that Plaintiff advance to Phase 4 of the program. (LR 56 J 24.)[12]

         After his shift on February 23, 2015, Plaintiff was summoned to meet with NMPD Chief Boyne and Sergeant Dzamko. (LR 56 ¶ 25.) Plaintiff testified that at that meeting Chief Boyne told him he was not "malicious enough" for the job and that he was taking longer than normal for the average probationary officer to complete field training.[13] (Pl's Depo. at 92:8-17.) Buckley and the Chief decided that Plaintiff "was unable to perform the essential functions of a police officer and he was a danger to public safety." (Buckley Depo. at 77:20-23.) Although Plaintiffs probationary employment could be terminated without recourse based on poor performance, Chief Boyne gave him the option to resign instead. (Pl's Depo. ...


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