Judge Reverses OCPD Suit Dismissal

BERLIN- A federal judge this week reversed an earlier decision to dismiss the civil suit filed against the town of Ocean City in March by a former Ocean City Police Department officer alleging he was wrongfully terminated by his former employer in violation of his Americans with Disabilities Act (ADA) rights, ruling favorably on an amended complaint that simply changes the phrase 'constructively discharged' to 'effectively discharged.'

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

Essentially, the case, which has been heard on several levels already, each time going against Catrino, boils down to a determination of whether the former officer voluntarily resigned when he left his position early, or whether the town wrongfully terminated Catrino in violation of his ADA rights.

In July, Senior U.S. District Court Judge William Nickerson ruled favorably on the town of Ocean City's motion to dismiss the case, agreeing Catrino's claim he was 'constructively discharged' did not meet the standard on several fronts. According to Nickerson's opinion at the time of the dismissal, Catrino;s claim he was constructively discharged did not meet one of the most important standards for a constructive discharge claim, which include working conditions so unbearable an employee has little or no recourse but to resign.

Undaunted by the judge's decision to dismiss the case, Catrino and his attorney regrouped and filed an amended complaint, which, among other things, changed the language from 'constructively discharged' to 'effectively discharged.'

On Wednesday, Nickerson, after reviewing the amended complaint, agreed the not-so-subtle semantic changes were sufficient to allow Catrino's case against the OCPD and the town of Ocean City to continue. Essentially, Nickerson reversed his earlier decision to dismiss the case, citing the language changes were sufficient to meet the standard.

'The plaintiff now argues that he erred in employing the term •€˜constructive discharge' on which he previously relied,' Nickerson's opinion reads. 'He suggests, in retrospect, that would have been more correct to say that he was •€˜effectively discharged. Albeit with some reluctance, the court will grant the plaintiff's motion.'