Aug 23, 2007

A discrimination lawsuit against the town by five former and current members of the Greenwich Police Department (GPD) has been amended to remove town officials, including First Selectman James Lash, from the suit, but the officers’ lawyer insists the complaint has not changed.

The suit, which was first filed in April in the United States District Court for the District of Connecticut, was amended last week to remove some people named in the suit including Mr. Lash, former Chief of Police James Walters, current GPD Captain Michael Pacewicz, former Town Administrator Edward Gomeau and current town Director of Labor Relations Alfred Cava. However, the suit is still pending against the Town of Greenwich and Richard Gudis, the attorney representing the officers, said it is moving forward.

In the suit, GPD Sgts. Robert Berry and Kraig Gray, Lt. James Heavey, Patrol Officer Sean O’Donnell and retired Detective Terrence McCue allege they were discriminated against by the town because of their military service. The suit was filed under the Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA). The act was created to protect the rights of people who served in the military to get their jobs back upon their return.

“The town for many years has demonstrated animus and discriminated against police officers who are actively participating in the National Guard or the reserves,” the suit alleges. “The Greenwich Police Department has denied these officers advancements that, not for their participation in the reserves or National Guard, would have occurred.”

The suit also alleged that town officials have admitted this to the officers.

“At one or more meetings, officials of the town have said in public ‘reservists need to decide between being in the reserve and working in Greenwich,’” the suit said.

William Wenzel, a private attorney representing the town in the suit, had previously filed a “motion to dismiss” to get the five named taken off as defendants because they couldn’t be held liable under USERRA.

“Even before we address the merits of the suit, the law did not support that any of these individuals had liability in this case,” Mr. Wenzel told the Post on Monday.
Mr. Walters, Capt. Pacewicz and Mr. Cava have all served in the military and Mr. Wenzel said they were “somewhat distressed” that anyone would claim they personally would not honor commitments to their fellow servicepeople. Mr. Wenzel added the decision to remove them from the suit was “the right decision.”

Mr. Gudis said the complaint itself was not being amended, just the list of defendants. Because of these changes, the officers will be able to seek damages only from the town as a whole. The officers are seeking punitive damages and economic losses, including lost benefits, they feel are due to them after being denied promotions.

Mr. Wenzel said he would continue to defend the town.

“The town denies it has done anything wrong or failed to honor its obligations,” Mr. Wenzel said, stressing the GPD’s strong commitment to the military.

He said new Chief of Police David Ridberg and the department were honored with a certificate of approval from the Army for its support of members in the National Guard or Army Reserve.

No specific monetary figure has been set in the suit and Mr. Gudis said that would be determined by the discovery process. He added, when the suit was first filed, it was not about money but rather the officers wanting to make sure they weren’t discriminated against.

The officers charge because of their status as active reservists, they were denied promotions to the GPD’s special units, including the Criminal Investigations Division and the Special Response Unit, which prevented them from earning higher pay and getting on the path for promotion in rank. In the suit, in addition to the monetary damages, the officers ask the town to establish reasonable criteria for promotions to special GPD units.

All of the officers in the suit are veterans of either the Gulf War or the current Iraq War. Officer O’Donnell was recently redeployed to Iraq for a second tour of duty.

When reached for comment on Monday, Mr. Gudis told the Post the decision was made to drop the five men as individuals from the suit after discussions with Mr. Wenzel.

“Mr. Wenzel made a compelling legal argument about why they shouldn’t be in the case,” Mr. Gudis said. “It’s not about the merits of the case, not at all. They had a very good legal reason for arguing that, but this is strictly a procedural happening. The case is going forward against the town.”

While the individuals are not being personally sued now, Mr. Gudis granted the door was not completely closed in that regard.

“If there are indications during the discovery process that they should once again be sued as individuals they could just as easily be put back in,” Mr. Gudis said. “I don’t foresee that, though.”

According to Mr. Wenzel, the town does not have enough information at this time about the officers’ specific complaints to issue a response. Under existing laws, a municipality is obligated to protect the status of its employees who are in the National Guard or reserve and have been called up for active duty. Mr. Wenzel said because there can be different obligations under the law and under union contracts, there can be disputes as a town works to make sure all the obligations are met.

“We need specific information as to what actions the plaintiffs feel the town should have done or did not do,” Mr. Wenzel said. “The town will look at the specific information and make sure it followed the law scrupulously. Until we have those specifics, it’s hard to comment on whether there is basis for the suit or whether there might be a settlement.”

Mr. Gudis said there were ongoing discussions with Mr. Wenzel regarding the case. He said the suit will enter the discovery phase next. During that period, both sides will provide the other with all relevant information asked for in regard to the suit. Mr. Wenzel said this will provide the town with the information it needs.

“Once we have that information we will work with opposing counsel and see if we agree or disagree on the issues,” he said.

Mr. Cava told the Post on Monday that even though his name had been dropped from the suit, he couldn’t comment on it because it was still pending litigation against the town. Mr. Lash said he had expected for the names to be dropped because of the way USERRA had been interpreted in the past.

“We will continue to defend the town vigorously against what we believe is an unreasonable lawsuit,” Mr. Lash said on Tuesday.

Capt. Pacewicz could not be reached for comment. Town policy is for officials not to comment on pending litigation.

© Copyright 2007 by Hersam Acorn Newspapers