Case 1:08-cv-00405-S-DLM Document 1 Filed 10/27/08 Page 1 of 7 PageID #: 1
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

MICHAEL J. DAMIANI,

Plaintiff,

vs.

CITY OF EAST PROVIDENCE by and

through JAMES MCDONALD in his

capacity as Finance Director, MAYOR

ISADORE S. RAMOS, Individually and in

his capacity as City Council Member,

ASSISTANT

MAYOR

BRUCE

DITRAGLIA, Individually and in his

capacity as City Council Member, ROBERT

E. CUSACK, Individually and in his

capacity as City Council Member,

VALERIE A. PERRY, Individually and in

his capacity as City Council Member,

BRYAN P. SILVA, Individually and in his

capacity as City Council Member, and

RICHARD BROWN, Individually and in

his capacity as City Manager

Defendants. .

C.A. No. 08-
08

405~

COMPLAINT
1. This Complaint arises out of allegations of employment discrimination, disparate impact and retaliation based upon disability.
JURISDICTION
2. The jurisdiction of this Court is invoked pursuant the Rhode Island Fair Employment Practices Act, G.L. 1956 § 28-5-1 et seq. ) Section 504 ofthe Rehabilitation Act of 1973 -- 29 U.S.C. § 794, and the Americans with Disabilities Act 42 USC § 12100 et seq. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1332,2201,2202 and 42 U.S.c. § 12100 et seq.
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VENUE
3. Venue is proper in this Court pursuant to 28 US.c. § 1391 (b) and 42 US.c. §§ 12117 and 2000e-5(t)(3) because the unlawful employment practices complained of herein were committed in this judicial district.
4 . Considerations ofjudicial economy, convenience and fairness to the litigants warrant exercise ofthis Court's supplemental jurisdiction over Plaintiffs state law claims. Plaintiffs state claims are so related to Plaintiffs federal claims that they form part of the same case or controversy.
PARTIES
5. Plaintiff, Michael 1. Damiani ("Plaintiff') is a citizen of the United States and a resident of the City of East Providence, State of Rhode Island.
6. Defendants are local government employers receiving Federal financial funds with more than 15 employees including, the City of East Providence by and through JAMES MCDONALD in his capacity as FINANCE DIRECTOR, MAYOR ISADORE S. RAMOS, Individually and in his capacity as City Council Member, ASSISTANT MAYOR BRUCE DITRAGLIA, Individually and in his capacity as City Council Member, ROBERT E. CUSACK, Individually and in his capacity as City' Council Member, VALERIE A. PERRY, Individually and in his capacity as City Council Member, BRYAN P. SILVA, Individually and in his capacity. as City Council Member, and RICHARD BROWN, Individually and in his capacity as City Manager.
ADMINISTRATlVE PROCEDURES
7. On or about May 22,2007, charges of employment discrimination by Plaintiff, based upon disability, disparate treatment and retaliation, were filed with the Commission for Human Rights for the State of Rhode Island (the "Commission").
8. On or about June 17, 2008 the Commission determined that probable cause existed to believe that the Defendants had violated the R.I. Fair Employment Practices Act (FEPA) and the R.I. Civil Rights of People with Disabilities Act. Specifically the Commission found that the Plaintiff had proven that he was subjected to disparate treatment on the basis of disability or perceived disability.
9. On or about July 31, 2008 , the Commission issued a ''Notice of Right To Sue" to Plaintiff On or about August 21,2008, the US . Equal Employment Opportunity Commission (the "EEOC") issued a "Notice of Suit Rights" to Plaintiff
10. This complaint is being filed within ninety (90) days of the receipt of the Notice of Right to Sue from the Commission and the Notice of Suit Rights from the EEOC.
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STATEMENT OF FACTS
11. Plaintiff was hired/appointed as Assistant Harbormaster by the City of East Providence on about April 17, 2007 .
12. On that same date, the City Council unanimously approved Plaintiff's appointment as Assistant Harbormaster with the stipulation that Plaintiff undergo a "vigorous" physical examination.
13. Plaintiff had a history of cardiovascular disability and prior employment for the City of East Providence in the Police Department. Plaintiff was previously employed by the City of East Providence as a Police Officer. Plaintiff applied for and was awarded a disability pension from the City ofEast Providence based upon his cardiovascular condition.
14. Plaintiff's cardiovascular condition impacts one or more of his major life activities . Plaintiff is a qualified individual with a "disability" and/or Defendants regarded Plaintiff as having a disability, who, with or without reasonable accommodation, could perform the essential functions of his job. Plaintiff is "disabled" because he: (a) has a physical impairment that substantially limits one or more of his major life activit ies; (b) has a record of such an impairment; and (c) was regarded by Defendant as having such an impairment. Moreover, Plaintiff's cardiovascular condition constituted a serious medical illness because it required the type oftreatment contemplated by applicable law.
15. Prior to April 17,2007 there was no requirement that Assistant Harbormasters undergo "rigorous" physical examinations prior to appointment. Moreover, the position of Harbormaster/Assistant Harbormaster has no physical requirements in the City Charter.
16. Prior to April 17, 2007 there was no written requirement that Assistant Harbormasters undergo physical examinations prior to appointment.
17. On April 17, 2007 Plaintiff met all requirements to become Assistant Harbormaster as contained in Chapter 13, Article III Coastal Waters and Harbor Areas, Division 3, Sections 13-83 and 13-84 and any other applicable section of the City Charter.
18. Plaintiff completed all training classes prior to April 17, 2007 and was recommended by the Harbormaster for appointment.
19. On April 17, 2007 Councilman Robert Cusack stated that stipulations should be placed on Plaintiff's appointment as Assistant Harbormaster because "we know he has a heart condition."
20. Thus, the City Council unanimously approved Plaintiff's appointment as Assistant Harbormaster with the stipulation that Plaintiff be required to take a "vigorous" physical examination.
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21. Plaintiff reported to Richard Brown the City Manager on or about April 18, 2007 to be sworn in as Assistant Harbormaster. Mr. Brown refused to meet with Plaintiff and was told that he would not be sworn in until he met the stipulation of a physical examination.
22. On or about Mary 15, 2007 two other nominees for Assistant Harbormaster came up for appointment before the City Council for approval. These two individuals were appointed without any stipulations for any physical examination.
23 . The actions ofthe Defendants violated the Amercians with Disabilities Act and applicable state law.
24. The actions of the Defendants violated the Federal and State Fair Employment Practices Act.
25. The actions of the Defendants violated Section 504 of the Rehabilitation Act of 1973 - 29 US.C. § 794.
26. The actions ofDefendants were motivated by malice or ill will or where reckless or made with callous indifference to the statutorily protected rights of Plaintiff.
COUNT I DISCRIMINATORY TERMS AND CONDITIONS OF EMPLOYMENT
AMERICANS WITH DISABILITIES ACT (42 U.S.C. § 12112)
27 . Plaintiff incorporates by reference Paragraphs 1 through 26 as if fully set forth herein .
28. Despite Plaintiff's completion of all prerequisites for employment and unanimous approval of the City Council, the Defendants unlawfully subjected Plaintiff to discriminatory treatment because of Plaintiffs disability and/or because Defendants regarded Plaintiff as having a disability.
29. But for the Defendants' intent to discriminate against Plaintiff because of his disability and/or because Defendants regarded Plaintiff as having a disability, Defendants would not have subjected Plaintiff to discriminatory treatment in violation of 42 US.C. §12112.
30. Defendants purposefully and maliciously and without justification or excuse took the wrongful and discriminatory actions against Plaintiff because of Plaintiff's disability and/or because Defendants regarded Plaintiff as having a disability, which actions were in violation of 42 US.C. §12112.
31. As a direct, foreseeable, and intended result of such unlawful discrimination, Plaintiff has suffered personal injuries.
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32. As a result of this course of Defendants' discriminatory treatment, Plaintiff has suffered and will continue to suffer pecuniary damages and compensatory damages. Defendants stand jointly and severally liable to Plaintiff for his resulting damages and for an appropriate award of exemplary or punitive damages.
WHEREFORE, Plaintiff prays for the relief hereinafter set forth.
COUNT II DISCRIMINATORY TERMS AND CONDITIONS OF EMPLOYMENT
(29 U.S.C. § 794)
33. Plaintiff incorporates by reference Paragraphs 1 through 32 as if fully set forth herein.
34. Despite Plaintiffs completion of all prerequisites for employment and unanimous approval ofthe City Council, the Defendants unlawfully subjected Plaintiff to discriminatory treatment because of Plaintiffs disability and/or because Defendants regarded Plaintiff as having a disability.
35. But for the Defendants' intent to discriminate against Plaintiff because of his disability and/or because Defendants regarded Plaintiff as having a disability, Defendants would not have subjected Plaintiff to discriminatory treatment in violation of29 U.S.C. § 794 .
36. Defendants purposefully and maliciously and without justification or excuse took the wrongful and discriminatory actions against Plaintiff because ofPlaintiff's disability and/or because Defendants regarded Plaintiff as having a disability, which actions were in violation of 29 U.S.c. § 794.
37. As a direct, foreseeable, and intended result of such unlawful discrimination, Plaintiff has suffered personal injuries.
38. As a result of this course of Defendants' discriminatory treatment, Plaintiff has suffered and will continue to suffer pecuniary damages and compensatory damages. Defendants stand jointly and severally liable to Plaintiff for his resulting damages and for an appropriate award of exemplary or punitive damages.
WHEREFORE, Plaintiff prays for the relief hereinafter set forth.
COUNTID
Rhode Island Fair Employment Practices Act ("FEPA") G.L. 1956 §§ 28-5-1 et seq. (Disparate Treatment)
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39. Plaintiff incorporates by reference Paragraphs 1 through 38 as if fully set forth herein.
40. Plaintiff has a record of disability or was perceived as being disabled by Defendants.
41. Without mitigating measures, Plaintiff s disability would significantly impair a major life activity . Among other things, upon information and belief, Plaintiff s cardiovascular condition, if left untreated, would have rendered him unable to care for himself and unable to perform manual tasks and might cause his death.
42. At all relevant times, Plaintiff was able to perform the essential functions of the job of Assistant Harbormaster with or without reasonable accommodation.
43. By the aforesaid actions, Defendants intentionally violated the FEP A.
44. Plaintiff is damaged as a proximate result of Defendants' intentional conduct.
WHEREFORE, Plaintiff prays for the relief hereinafter set forth.
COUNT IV
Rhode Island Fair Employment Practices Act ("FEPA") G.L. 1956 §§ 28-5-1 et seq. (Retaliation)
45. Plaintiff incorporates by reference Paragraphs 1 through 44 as if fully set forth herein.
46. By the aforesaid actions, Defendants intentionally violated the FEP A. Among other things, Plaintiff was not sworn in as Assistant Harbormaster and was required to take a physical medical examination.
47. Plaintiff is damaged as a proximate result of Defendants' intentional conduct.
WHEREFORE, Plaintiff prays for the relief hereinafter set forth.
PRAYER FOR RELIEF
Plaintiff prays that this Court :
(1) declare that the Defendants' actions complained of are unlawful; (2) order the Defendants to make the Plaintiff whole ; (3) order the Defendants to pay Plaintiff compensatory damages; (4) order the Individual Defendants to pay Plaintiff punitive damages; (5) order the Defendants to pay Plaintiff liquidated damages ; (6) retain the jurisdiction of this action to ensure full compliance; (7) order the Defendant to pay Plaintiff costs and expenses and reasonable attorney 's
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fees; and (8) grant such other relief to Plaintiff as the court deems just and proper.
JURY TRIAL DEMAND Plaintiff demands a trial by jury.
Plaintiff Michael 1. Damiani , By his attorney,

Dated: October 27,2008

arolyn A. annis Esq. #4275 128 Dorrance Street, Suite 400 Providence, RI 02903 (401) 272-2002 (401) 274-0175 (Fax)

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 Case 1:08-cv-00405-S-DLM Document 9 Filed 09/29/10 Page 1 of 5 PageID #: 30
SETTLEMENT AGREEMENT. RELEASE AND WANER
This Agreement is made as of thjl.l:.Z_)::aL_)day!-4~.~10.
WHEREAS, Michael J. Damiani filed a complaint against the City of East Providence, by and through James McDonald, in his capacity as Finance Director, Mayor Isadore S. Ramos, Assistant Mayor Bruce Ditraglia, Robert E. Cusack, Valerie A. Perry, Brian P. Silva, and Richard Brown (hereinafter collectively the "Defendants") in the United States District Court for the District of Rhode Island, Case Number 2008-405S, alleging violations of the Americans with Disabilities Act, the Rehabilitation Act of 1973, and the Rhode Island Fair Employment Practices Act (hereinafter the "Complaint"); and
WHEREAS, Defendants deny the allegations against them, including the allegations made by the Plaintiff in his/her Complaint; and
NOW, THEREFORE, in consideration of the foregoing premises it is agreed as follows:
1. SETTLEMENT:
Plaintiff shall receive a settlement in the amount of $22,000 (the "settlement amount"). $7,000 of the settlement amount is designated as damages and shall be paid in the form of a check(s) made payable to Michael J. Damiani. $15,000 of the settlement amount is designated as an attorney fee that shall be paid in the form of a check made payable to Carolyn A. Mannis, Esquire. The settlement amount shall be paid within thirty-days of receipt of Defendant's attorney of a copy of this Agreement executed by Plaintiff and a Stipulation of Dismissal executed by Plaintiff's attorney.

Case 1:08-cv-00405-S-DLM Document 9 Filed 09/29/10 Page 2 of 5 PageID #: 31
2. DISMISSAL OF ALL CLAIMS WITH PREJUDICE The Plaintiff hereby agrees that the Complaint shall be dismissed with prejudice and without costs, and authorizes his attomey to execute and file forthwith a Stipulation of Dismissal with Prejudice in the form attached hereto as Exhibit A. 3. RELEASE AND DISCHARGE BINDING ON PARTIES, HEIRS,
SUCCESSORS AND ASSIGNS: For good and valuable consideration, including the payments set forth in Section 1, the sufficiency of which is hereby acknowledged, Michael J. Damiani, individually and on behalf of his heirs, executors, administrators and assigns, hereby fully releases and discharges Defendants and the Rhode Island Interlocal Risk Management Trust, as well as its parent companies, subsidiaries, affiliates, divisions, branches, successors, assigns and past, present or future officers, directors, trustees, employees, attorneys, agents, representatives and insurers ("Releasees"), from and with respect to any and all claims, demands, charges, liabilities, actions, contracts, debts, damages, suits, and causes of action of any kind whatsoever, in law or at equity, whether known or unknown, suspected or unsuspected, concealed or hidden, which the Plaintiff now has or may have against Defendants, or which he may have had against any of them, arising out of or relating in any way to Plaintiff's appointment as an Assistant Harbormaster, including for violations of Americans with Disabilities Act, The Rehabilitation Act of 1973, The Rhode Island Fair Employment Practices Act, The Rhode Island Civil Rights Act and any other similar claims, including any and all claims for emotional distress, personal injuries, wages, back pay, front pay, costs, attorney's fees or punitive damages, and any other claims which were or could have been asserted in the Complaint.
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4. DENIAL OF ANY VIOLATION OR LIABILITY: I understand that the Defendants expressly deny any violation of any of their policies, procedures, state or federal laws or regulations. Accordingly, while this Agreement resolves all issues between the Plaintiff and the Defendants relating to any alleged violation of the Defendants' policies or procedures or any state or federal law or regulation, this Agreement does not constitute an adjudication or finding on the merits and it is not, and shall not be construed as, an admission by Defendants of any violation of its policies, procedures, state or federal laws or regulations. Moreover, neither this Agreement nor anything in this Agreement shall be construed to be or shall be admissible in any proceeding as evidence of or an admission by Defendants of any violation of its policies, procedures, state or federal laws or regulations. This Agreement may be introduced, however, in any proceeding to enforce the Agreement, subject to any order protecting its confidentiality. 5. PAYMENT OF TAXES: Plaintiff acknowledges that he (and not Defendants) shall be liable for all taxes, if any, that are or may become owing on the settlement amount, payment for emotional distress and attorney's fees. Plaintiff agrees to indemnify Releasees for, and hold them harmless from, any liability to any taxing authority or governmental agency for taxes or any other liability assessed against it as a result of Plaintiffs failure to pay taxes in connection with the settlement. 6. SEVERABILITY OF PROVISIONS: Should any part of this Agreement be held invalid by a court or competent jurisdiction, that invalidity shall not affect any other provision or application of the Agreement that can be given effect without the invalid portion, and to this end, the provisions of this Agreement are declared to be severable.
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Case 1:08-cv-00405-S-DLM Document 9 Filed 09/29/10 Page 4 of 5 PageID #: 33 7. FULL UNDERSTANDING AND VOLUNTARY ACCEPTANCE: The Plaintiff acknowledges that he has been represented by counsel of his
choice throughout the negotiation of this Agreement, and that the terms of this Agreement have been completely read and that those terms are fully understood and voluntarily accepted by him. Plaintiff further states that he has carefully read the foregoing agreement and fully understands its terms and signs the same as his own free act and deed.
rr;ll
Witness my hand and seal thiscXq day of
WITNESS:
~~
9 Address I;) '6 DQ}Nt.n/\C g_, e Ll 0 0
'?ros\ c\s.>J\Q...Q 'R. \ 029 03
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ADDENDUM

For and consideration of the payment of the attorney's fees set forth in Paragraph

1 of the Settlement Agreement, Carolyn A. Mannis, Esquire, counsel for the Plaintiff, hereby

releases and discharges any and all claims that she may have against the Defendants for

attorney's fees arising from those claims of Plaintiff that were or could have been asserted in the

complaint.

Je Witness my hand and seal this :2..9+'---day of'""' p~

,2010.

Address (U P<>rr~nc... (}-
frQ'/1k,.,._ 07-fl 4 J

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 Case 1:08-cv-00405-S-DLM Document 10 Filed 09/29/10 Page 1 of 1 PageID #: 35

') UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

MICHAEL J. DAMIANI

vs.

C.A. No. 08-405S

CITY OF EAST PROVIDENCE by and through JAMES MCDONALD in his capacity
as Finance Director, MAYOR ISADORE S. RAMOS, Individually and in his capacity as
City Council Member, ASSISTANT MAYOR BRUCE DITRAGLIA, Individually and in his capacity as City Council Member, ROBERT E. qJSACK, Individually and in his capacity as City Council Member, VALERIE A. PERRY, Individually and in her capacity as City Council Member, BRYAN P. SILVA,
Individually and in his capacity as City Council :
Member, and RICHARD BROWN, Individually and in his capacity as City Manager:

STIPULATION

The plaintiff's complaint is dismissed with prejudice, no interest, no costs.

PLAINTIFF, By his attorney,

DEFENDANTS, By their attorney,

'ca'Tolyn A. Mannis, Esquire (#4275) 128 Dorrance Street, Suite 400 Providence, RI 02903 (401) 272-2002 Fax: (401) 274-0175

Is/ Mark T. Reynolds Mark T. Reynolds, Esquire (#4764) Reynolds, DeMarco & Boland, Ltd. 146 Westminster Street, Suite 400 Providence, RI 02903 (401) 861-5522 . Fax: (401) 331-4861

Date.d: .,.__S___epte_mb_er _29_, 2010

 
 CLOSED,MEDIATION
U.S. District Court District of Rhode Island (Providence) CIVIL DOCKET FOR CASE #: 1:08−cv−00405−S−DLM

Damiani v. City of East Providence, et al Assigned to: Judge William E. Smith Referred to: Magistrate Judge David L. Martin Cause: 42:12101 Americans With Disabilities Act
Plaintiff

Date Filed: 10/27/2008 Date Terminated: 10/05/2010 Jury Demand: Both Nature of Suit: 445 Civil Rights: Americans with Disabilities − Employment Jurisdiction: Federal Question

Michael J. Damiani

represented by Carolyn A. Mannis 128 Dorrance Street Suite 400 Providence, RI 02903 272−2002 Fax: 274−0175 Email: carolynmannis@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Robert E. Cusack Individually and in his capacity as City Council Member
Defendant Valerie A. Perry Individually and in her capacity as City Council Member
Defendant Bryan P. Silva Individually and in his capacity as City Council Member
Defendant Richard Brown Individually and in his capacity as City Manager
Defendant City of East Providence by and through James McDonald in his capacity as Finance Director

represented by Mark T. Reynolds Reynolds, DeMarco &Boland, Ltd. 146 Westminster Street Suite 400 Providence, RI 02903 861−5522 Fax: 331−4861 Email: mtreynolds@rdblawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark T. Reynolds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark T. Reynolds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark T. Reynolds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark T. Reynolds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Bruce Ditraglia Individually and in his capacity as Assistant Mayor and as City Council Member
Defendant
Isadore S. Ramos Individually and as Mayor of the City of East Providence and in his capacity as City Council Member

represented by Mark T. Reynolds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark T. Reynolds (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/27/2008 02/11/2009 02/23/2010 02/23/2010 02/23/2010 06/02/2010 06/21/2010 06/30/2010 06/30/2010
08/16/2010 09/29/2010 09/29/2010 10/05/2010

# Docket Text
1 COMPLAINT against all defendants ( Filing fee $ 350 receipt number 69896.), filed by Michael J. Damiani. (Attachments: # 1 Civil Cover Sheet)(Smith, Rana) (Entered: 10/27/2008)
Summonses (7) Issued as to: City of East Providence, Bruce Ditraglia, Isadore S. Ramos, Robert E. Cusack, Valerie A. Perry, Bryan P. Silva, Richard Brown. (Duhamel, John) (Entered: 02/11/2009)
2 NOTICE of Appearance by Mark T. Reynolds on behalf of all defendants (Reynolds, Mark) (Entered: 02/23/2010)
3 STIPULATION Extending Time to Respond to Plaintiff's Complaint by all defendants. (Reynolds, Mark) (Entered: 02/23/2010)
4 ANSWER to 1 Complaint by City of East Providence, Bruce Ditraglia, Isadore S. Ramos, Robert E. Cusack, Valerie A. Perry, Bryan P. Silva, Richard Brown.(Reynolds, Mark) (Entered: 02/23/2010)
5 NOTICE of Hearing: Rule 16 Conference set for 6/30/2010 at 2:00 PM in Judge Smith Chambers before Judge William E. Smith. (Jackson, Ryan) (Entered: 06/02/2010)
6 RULE 16 STATEMENT by Michael J. Damiani. (Mannis, Carolyn) (Entered: 06/21/2010)
Minute Entry for proceedings held before Judge William E Smith: Rule 16 Conference held on 6/30/2010; counsel present: Mark Reynolds. (Jackson, Ryan) (Entered: 06/30/2010)
7 PRETRIAL ORDER. All factual discovery must be completed by 10/29/10, dispositive motions are due by 11/15/10, pretrial memoranda are due 30 days after a decision on any dispositive motions or, if no dispositive motions are filed, by 11/15/10. So Ordered by Judge William E Smith on 6/30/10. (Marseglia, Patricia) (Entered: 06/30/2010)
8 ORDER REFERRING CASE to Mediation. So Ordered by Judge William E. Smith on 8/16/10. (Jackson, Ryan) (Entered: 08/16/2010)
9 SETTLEMENT AGREEMENT by Michael J. Damiani. (Mannis, Carolyn) (Entered: 09/29/2010)
10 STIPULATION re 9 Settlement Agreement Dismissal of All Claims by Michael J. Damiani. (Mannis, Carolyn) (Entered: 09/29/2010)
TEXT ORDER ENTERING 10 Stipulation of Dismissal filed by Michael J. Damiani, City of East Providence, et al.. So Ordered by Judge William E. Smith on 10/5/10. (Jackson, Ryan) (Entered: 10/05/2010)