United States District Court, D. Connecticut
MICHAEL S. WARD, Plaintiff,
TOWN OF NEW MILFORD, Defendant.
RULING GRANTING DEFENDANT'S MOTION FOR SUMMARY
BOND ARTERTON, U.S.D.J.
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.
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] ¶
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
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].)
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.)
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.)
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" 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.)
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.
January 6, Deputy Chief Buckley was informed by Officer
Taranto of a note that had recently been written by
Plaintiff,  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.)
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.)
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.)
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].)
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.)
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.) 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).
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
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.) 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,
and Masi ultimately chose not to recommend that Plaintiff
proceed to Phase 4. (LR 56 ¶ 21; See DORs at
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.)
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.)
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. (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.