Friday, June 19--Wrongful Termination Case Tests Cops' Bargaining Accord

OCEAN CITY - Legal wrangling continues in the lawsuit filed in federal court in March by a long-time Ocean City police officer asserting his health condition led to his wrongful termination in July 2007 in violation of his Americans with Disabilities Act (ADA) rights, with 'substantive' legal issues barring a clear path to a resolution in the case.

In March, former OCPD officer David Catrino filed suit in U.S. District Court seeking injunctive relief and an undisclosed award of compensatory and punitive damages against the town for wrongfully denying him a reasonable accommodation he believed he was entitled to under the ADA. In short, Catrino, who has diabetes, alleges he was dismissed in July 2007 when he left to go home and eat shortly before his scheduled shift was set to expire.

According to the complaint, Catrino continued to work with the requested accommodation without incident until July 21, 2007 when his supervisor, Corporal Albert Custer, 'knowingly required him, under Mr. Catrino's protestations, to continue to work in a non-emergency situation without food. Essentially, the case, which has been heard on several levels, each time going against the plaintiff, boils down to a determination of whether or not the former officer voluntarily resigned when he left his position early, or if the town wrongfully terminated Catrino in violation of his ADA rights.

Last week both sides sent letters to the federal judge handling the case suggesting there were 'substantive' issues to resolve before the case can move further. The issues revolve around the ruling of an arbitrator in favor of the town and against Catrino before the plaintiff filed suit in federal court.

Several years ago, Ocean City police won the right to a collective bargaining agreement, which covers a wide variety of areas including salary negotiations, policy making and the use of neutral arbitration to resolve disputes, among other things. However, the Catrino case could represent a first real test for the collective bargaining agreement.

Town attorney Guy Ayres III argued in a letter to Judge William Nickerson this week, under the collective bargaining agreement, a neutral arbitrator had already ruled in the case in favor of the town and against Catrino, making the federal suit redundant.

'As set forth more fully in Ocean City's previous submissions to the court, there was a final judgment on the merits in the arbitration,' the letter reads. 'Catrino and Ocean City were the parties and the cause of action in this case is the same as in the arbitration.'

Ayres told the judge, through the letter, Catrino should not be able to try and retry his case at every different level until he gets an outcome he is satisfied with.

'Catrino's dissatisfaction with the result of the arbitration is not a basis for him to re-litigate issues that have been tried and resolved,' the letter reads. 'Thus, Catrino's ADA claims are barred and the court should grant Ocean City's motion to dismiss, or in the alternative, for summary judgment.'

However, Catrino's attorney, Robin Cockey, responded to Ayres' letter, arguing the arbitrator did not rule on the essential elements of the case.

'The issue of whether the defendant constructively discharged Mr. Catrino, or took other adverse employment action because of his disability was never fully addressed, discussed or resolved by the arbitrator,' the letter in response reads. 'The defendant cannot prevent Mr. Catrino from filing an ADA claim based upon a provision in its employee handbook and the arbitrator's narrow decision that the elements of that provision. To do so would be contrary to public policy.'