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Dicesare v. Town of Stonington

United States District Court, D. Connecticut

December 13, 2018

TOWN OF STONINGTON, et. al., Defendants.



         Louis DiCesare, II (“Plaintiff”) brings this action against Barbara J. McKrell, Vincent A. Pacileo, and the Town of Stonington (“Town” or collectively “Defendants”). ECF No. 43. Mr. DiCesare's Amended Complaint consists of seven counts, alleging various U.S. Constitution violations under 42 U.S.C. § 1983 (“Section 1983”) due to his termination, retaliation under different Connecticut statutes, and retaliation in violation of the Family and Medical Leave Act (“FMLA”).

         Defendants moved for summary judgment on all counts. ECF No. 70. Plaintiff has also moved for summary judgment on all counts. ECF No. 93.

         For the following reasons, the Court GRANTS Defendants' motion in part and DENIES Plaintiff's motion for summary judgment in its entirety. The Court also declines to exercise supplemental jurisdiction over Mr. DiCesare's remaining state law claims and therefore remands them back to Connecticut Superior Court.


         A. Factual Allegations

         Mr. DiCesare alleges that he was a Highway Supervisor from February 2009 through April 30, 2015. Second Am. Compl., at ¶ 5, ECF No. 43 (“Second Am. Compl.”). On or about January 21, 2014, Mr. DiCesare allegedly became a bargaining member covered by the Collective Bargaining Agreement (“CBA”) between the Town and the Stonington Public Administrators Association, Connecticut Independent Labor Union, UE Local #54 (“Local 54”). Id. at ¶ 2. On or around February 24, 2014, Ms. McKrell became the Town's Director of Public Works. Id. at ¶ 13. This case concerns Mr. DiCesare's various allegations regarding Defendants' conduct between July 2014 and April 30, 2015. Id. at ¶¶ 17-55.

         Mr. DiCesare alleges that the Highway Supervisor position was a non-bargaining union position at the time of his appointment. Id. at ¶ 16. On or around July 23, 2014, Local 54 filed a petition with the State Board of Labor Relations (“SBLR”) seeking to include the Highway Supervisor position. Id. at ¶ 17. Mr. DiCesare alleges that the Town openly opposed Local 54's petition and “strenuously objected” through its attorneys to keep Mr. DiCesare out of the bargaining unit. Id. at ¶17-18. After Local 54 filed the petition, Mr. DiCesare alleges that he has “a target on his back, ” and Ms. McKrell was “gunning for his job” because he sought inclusion in the bargaining unit. Id. at ¶ 19.

         Mr. DiCesare further alleges that Ms. McKrell took several “retaliatory” actions against him, such as “increased instances of her directly supervising highway crews in circumvention of the Plaintiff as the Highway Supervisor, modification of the Plaintiff's duties without explanation or notice, elimination and/or reduction of Plaintiff's duties resulting in increased overtime for other employees, ignoring Plaintiff's request to discuss performance expectations and responsibilities, and falsely accusing the Plaintiff of missing deadlines and/or not performing up to expectations . . .” Id. at ¶ 20.

         On or about September 16, 2014, the SBLR ordered an election to include the Highway Supervisor position in Local 54's collective bargaining unit. Id. at ¶ 21. On October 8, 2014, Local 54 voted the position into the unit. Id. SBLR later modified Local 54 to include the Highway Supervisor over the Town's objections. ¶ 33. On March 27, 2015, the decision became final, retroactive to January 21, 2015. Id.

         On October 9, 2014, Mr. DiCesare alleges that the First Selectman “publicly berated the Plaintiff on a Facebook page that he regularly used to post Town information, ” where the First Selectman apologized to the public for “substandard management” of the project. Id. at ¶ 22. Mr. DiCesare claims that the First Selectman's statements cast him in a falsely negative light related to the project. Id. As a result, Mr. DiCesare allegedly experienced physical and emotional problems that forced him to take medical leave for ten days in October 2014. Id. at ¶ 23.

         According to Mr. DiCesare, Ms. McKrell continued to treat him in a “hostile and retaliatory manner” in retaliation for exercising his union participation rights and allegedly increased during his medical absence. ¶ 24.

         On or around October 30, 2014, Ms. McKrell met with Mr. DiCesare to allegedly discuss his “responsibilities and/or decisions with respect to the leaf removal program” where, according to Mr. DiCesare, Ms. McKrell yelled at him. Id. at ¶ 25. Later that evening Ms. McKrell allegedly removed Mr. DiCesare from another project, and Mr. DiCesare responded to the e-mail complaining of “retaliation for his recent union participation.” Id. at ¶ 26. Five days later, Ms. McKrell allegedly issued a written warning related to his temper at the October 29, 2014 meeting. Id. at ¶ 27.

         On or around December 18, 2014, Mr. DiCesare spoke to the First Selectman regarding Ms. McKrell's handling of winter snow and ice operations, and the First Selectman directed Mr. DiCesare to discuss any concerns with Ms. McKrell. Id. at ¶ 28.

         1. January 2015 Suspension

         On or around January 7, 2015, Ms. McKrell issued a pre-disciplinary notice informing Mr. DiCesare of her intention to impose a five-day suspension for “insubordination and insufficient planning.” Second Am. Compl., at ¶ 29. On or around January 16, 2015, Mr. DiCesare claims that he and his attorney went to meet with Ms. McKrell and the First Selectman to present documentation and information in response to Ms. McKrell's proposed suspension. Id. at ¶ 31. A police sergeant allegedly did not allow Mr. DiCesare's attorney to accompany him to the meeting. Id. at ¶ 31. On or around January 20, 2015, the Town suspended Mr. DiCesare for five working days. Id. at ¶ 32.

         2. April 2015 Termination

         Following the five-day suspension, Mr. DiCesare took medical leave under the FMLA until March 23, 2015. Second Am. Compl., at ¶ 34.

         On March 22, 2015 Ms. McKrell sent Mr. DiCesare by e-mail a two-page memorandum taking away his work vehicle, moving his office form the highway garage to town hall, and providing an hour-by-hour schedule for Mr. DiCesare's day. Id. at ¶ 35.

         On or around April 26, 2015, Mr. DiCesare sent the First Selectman an e-mail regarding possible unethical use of Town vehicles by an employee. Id. at ¶ 40.

         On or around April 30, 2015, Ms. McKrell directed Mr. DiCesare to report to her office. Id. at ¶ 41. When he arrived, Ms. McKrell had a union representative present and allegedly handed Mr. DiCesare a written memorandum regarding her intention to terminate his employment. Id. at ¶ 42.

         Mr. DiCesare returned about twenty minutes later to ask Ms. McKrell to postpone the meeting to allow proper notice of the allegations, to prepare responses, and have his chosen union representative; she denied the request. Id. at ¶¶ 43, 44. The meeting ended at approximately 7:50 a.m. Id. at ¶ 45.

         Ms. McKrell allegedly terminated Mr. DiCesare at approximately 11:30 a.m. with a three-page memorandum. Id. at ¶ 46.

         3. Grievance History and Subsequent Arbitration

         On or around January 26, 2015, Mr. DiCesare filed three grievances with Vincent Pacileo related to Plaintiff's five-day suspension and Ms. McKrell's denial of his personal representation at the January 13, 2015 pre-disciplinary meeting. Id. at ¶ 39. On March 6, 2015, Mr. Pacileo notified Mr. DiCesare that he would not move forward with the grievance because he had been suspended before the SBLR reached a decision on the Highway Supervisor position. Defs.' Mem. of Law in Supp. of Mot. for Summ. J., at 21, ECF No. 70 (“ECF No. 70”). After Mr. DiCesare returned from FMLA leave, he met with Mr. Pacileo about his grievances. Id. Mr. Pacileo denied each grievance.

         Following his April 30, 2015 termination, Mr. DiCesare filed a grievance through Local 54. Id. at ¶ 58. On or around May 26, 2015, Mr. Pacileo denied Local 54's grievance related to Mr. DiCesare's termination. ECF No. 70, at 21.

         On or around July 13, 2015, Mr. DiCesare submitted his suspension and termination grievances to arbitration under the CBA. ECF No. 70, at 22. There were sixteen arbitration hearings related solely to Mr. DiCesare's suspension between December 7, 2015 and August 8, 2017. Id. On or around March 2, 2018, the Arbitrator found that the Town did not have just cause to suspend Mr. DiCesare because the Town did not allow the Plaintiff to have a Union Representative present during the pre-disciplinary hearing. Id.

         Five more arbitration hearings have taken place regarding Mr. DiCesare's termination, with a ruling set for January 2019. Id. at 23; Pl.'s Opp'n to Defs.' Mot. for Summ. J. and Cross-Mot. for Summ. J., at 12, ECF No. 93 (“ECF No. 93”).

         B. Procedural History

         On October 27, 2015, Mr. DiCesare filed a Complaint in the Connecticut Superior Court against Barbara McKrell, Vincent Pacileo, and the Town of Stonington. ECF No. 2, Ex. A, at 7. On ...

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