United States District Court, D. Connecticut
RULING AND ORDER ON MOTION FOR SUMMARY
A. BOLDEN, UNITED STATES DISTRICT JUDGE.
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
moved for summary judgment on all counts. ECF No. 70.
Plaintiff has also moved for summary judgment on all counts.
ECF No. 93.
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.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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.
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.
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.
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.
Id.at ¶ 33. On March 27, 2015, the decision
became final, retroactive to January 21, 2015. Id.
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.
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. Id.at ¶
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.
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.
January 2015 Suspension
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.
April 2015 Termination
the five-day suspension, Mr. DiCesare took medical leave
under the FMLA until March 23, 2015. Second Am. Compl., at
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.
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.
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
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.
McKrell allegedly terminated Mr. DiCesare at approximately
11:30 a.m. with a three-page memorandum. Id. at
Grievance History and Subsequent Arbitration
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.
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.
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.
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”).
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.