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LaVecchia v. Milford Board of Fire Commissoners

United States District Court, D. Connecticut

October 3, 2019




         Before the Court is a Motion to Dismiss the Plaintiff Matthew LaVecchia's Complaint, [ECF No.1], brought by Defendants Milford Board of Fire Commissioners (“the Board”), Fire Chief Douglas E. Edo, Assistant Chief of Operations Gary R. Baker, and Assistant Chief of Fire Marshal Bernard R. Begley (collectively “Defendants”). [ECF No. 14]. For the reasons set forth herein the Defendants' Motion to Dismiss against the individual defendants will be GRANTED with prejudice. The Defendants' Motion to Dismiss against the Board will be GRANTED without prejudice to the Plaintiff filing an Amended Complaint by October 24, 2019 sufficient to state a plausible claim for relief under the Americans with Disabilities Act (“ADA”) against the Board.

         I. Plaintiff's Complaint

         Plaintiff's pro se Complaint, which was filed on March 7, 2019, consists of a partially filled out Pro Se Form 7 Complaint for Employment Discrimination, with an attached notarized “Affidavit of Retaliation for Filing a CHRO Complaint in 2016.” [ECF No. 1 at 7-13]. The Complaint also attaches a “Dismissal and Notice of Rights” signed by U.S. Equal Employment Opportunity Commission (“EEOC”) Area Office Director Feng Kenneth An on December 13, 2018, stating that “[b]ased upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes.” Id. at 14. The EEOC Notice also states that “This does not certify that the respondent is in compliance with the statutes. No. finding has been made as to any other issues that might be construed as having been raised by this charge.” Id. Finally, the EEOC Notice informs the Plaintiff that he has 90 days in which to file suit. Id.

         On the Pro Se Form 7 portion of his Complaint, Plaintiff checked the box indicating that it was the ADA that formed the “Basis for Jurisdiction.” Id. at 3. In the “Statement of Claim” section, Plaintiff checked boxes for “[termination of my employment, ” “[f]ailure to promote me, ” “[f]ailure to accommodate my disability, ” “[u]nequal terms and conditions of my employment, and “[r]etaliation.” Id. at 4. The remainder of the applicable blocks on Plaintiffs Pro Se Form 7 are filled in with “See Attachment.” Id. at 4-5.

         Plaintiff's affidavit entitled “Affidavit of Retaliation for Filing a CHRO Complaint in 2016” alleges that he filed a Complaint with the State of Connecticut Commission on Human Rights and Opportunities (“CHRO”) in December 2016, and that filing that Complaint caused Defendants to retaliate against him by terminating him without just cause.[1] [ECF No. 1 at 7].

         The facts that Plaintiff alleges in support of this conclusion are as follows. First, in a section entitled “Statement of Facts #1, ” Plaintiff alleges that the 2016 CHRO Complaint was resolved and memorialized in a settlement agreement. Id. Plaintiff alleges that the terms and condition of that agreement were violated by Defendants by the Milford Fire Department (“MFD”) not providing “ADA sensitivity training to MFD employees, ” certain items in Plaintiff's personnel file not being removed therefrom, non-use of Plaintiff by the MFD dive team, and Plaintiff not being trained, qualified and used as an operator of certain MFD fire apparatus. Id. at 7-8. Plaintiff also argues apart from the settlement agreement violations that (i) a 2017 collective bargaining agreement (“CBA”) between the City of Milford and the firefighters' union eliminated “Acting Pay, ” which Plaintiff might have been entitled to, (ii) he was terminated to save the MFD money before he retired, and that (iii) Defendant Begley tried unsuccessfully to catch Plaintiff slacking on the job. Id. at 8.

         Second, in a section entitled “Statement of Facts #2, ” Plaintiff alleges that on February 14, 2018, he was “arrested for an off duty assault, ” which Plaintiff claims was actually initiated by an old high school friend. Id. at 9. This led to Plaintiff being “removed from his promotion assignment” and reassigned, [2]suspended without pay, and eventually terminated, without proper due process protections being afforded and in a way that was not even-handed and that was discriminatory. Id. at 9-10. Plaintiff also alleges that the Board committed several freedom of information violations for, inter alia, holding improper executive sessions. Id. at 10-12. Finally, Plaintiff asks that the Court enforce the 2016 settlement agreement, promote him because his boss is retiring, force the MFD to perform certain personnel actions, provide him with back pay, order the Defendants to stop harassing him, and pay his legal fees and costs. Id. at 13.

         II. Defendant's Motion to Dismiss

         Defendant's Motion to Dismiss, [ECF No. 14], first argues that the ADA does not provide for individual liability and that therefore the three individual defendants, Edo, Baker, and Begley should be dismissed from the case, leaving only the Board. Id. at 5-6.

         Defendants next argue that Plaintiff's discrimination claims under the ADA are not plausible, for several reasons. First, Defendants argue that Plaintiff has not alleged that he is disabled, which Defendants claim is required under the ADA. Id. at 6-9. Second, Defendants argue that other than his termination, Plaintiff has not alleged that he has suffered an “adverse employment action, ” which Defendants claim is also required by the ADA. Id. at 10-14. Third, Defendants argue that Plaintiff has not alleged “causation, ” meaning that Plaintiff has not alleged that an adverse employment action that Plaintiff has suffered was “caused” by his disability, or the Defendants' perception of it. Id. at 14-16. Specifically, Defendants argue that the Plaintiff's allegations seem to indicate that the cause of Plaintiff's termination was the assault that occurred in February 2018, not because of discrimination based on a disability Plaintiff had, or Defendants' perception of Plaintiff's disability. Lastly, Defendants argue that Plaintiff has not sufficiently pled a failure to promote or a reasonable accommodation claim because of a lack of “any allegations” concerning either. Id. at 16-18.

         Finally, Defendants argue Plaintiff's ADA retaliation claim is implausible, because “plaintiff has not set forth any allegations causally connecting his [2016 CHRO] complaint and the challenged employment actions [i.e. termination], ” id. 18-20, and because the time period between the 2016 CHRO Complaint and his termination was too great under existing caselaw. Id.

         Plaintiff has failed to respond to Defendants' Motion to Dismiss and the time for doing so has long since passed. [ECF No. 14 (setting response to Defendants' Motion to Dismiss due by August 8, 2019)].

         III. L ...

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