Case 1:12-cv DPW Document 1 Filed 09/21/12 Page 1 of 5 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

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1 Case 1:12-cv DPW Document 1 Filed 09/21/12 Page 1 of 5 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS SCOTT CARTON, Plaintiff, v. TOWN OF WATERTOWN, Defendant. CIVIL ACTION NO COMPLAINT AND JURY DEMAND Introduction This action is brought by Plaintiff Scott Carton against the Town of Watertown ( Town or Watertown, where he works as a firefighter. Mr. Carton alleges that the Town discriminated against him based on his exercise of rights under the Family and Medical Leave Act ( FMLA, 29 U.S.C et seq. After Mr. Carton took approved leaves under the FMLA to care for his wife, who needed care for a serious medical condition, he was denied a promotion based on allegedly excessive leave. The leave that was allegedly excessive included the approved leaves he took under the FMLA. Mr. Carton also brings a claim for breach of contract. After he complained about being passed over for promotion, the Town agreed that it would not use his prior FMLA leaves against him. The Town breached that contract by again passing him over for promotion based on the same allegation of excessive leave. Parties 1. Plaintiff Scott Carton is an adult resident of Watertown, Massachusetts.

2 Case 1:12-cv DPW Document 1 Filed 09/21/12 Page 2 of 5 2. Defendant Town of Watertown is a duly-incorporated municipality of the Commonwealth of Massachusetts, and is subject to the Civil Service Law, M.G.L. c. 32, with respect to promotions in the Watertown Fire Department. Jurisdiction and Venue 3. The court has original jurisdiction over this matter pursuant to 28 U.S.C The court has supplemental jurisdiction over pendent claims pursuant to 28 U.S.C. 1367(a. 4. Venue in this forum is proper pursuant to 28 U.S.C. 1391(b. Facts 5. Mr. Carton began working as a firefighter in the Town of Watertown in July At all times, he has performed his duties well. 6. Mr. Carton and Jennifer Carton have three children, ages 9, 13, and 15. Ms. Carton has a serious medical condition resulting from prior trauma. On occasions when she has required more extensive medical treatment, Mr. Carton has had to take time off from work. Initially, Mr. Carton did not request FMLA leave for these absences. Beginning in 2004, however, Mr. Carton has requested, and been approved for, leave under the FMLA on multiple occasions. 7. In 2003, Mr. Carton received an oral warning for his use of sick leave. 8. In July 2005, after he began requesting leaves under the FMLA, Mr. Carton received a written warning based on his use of leave, without distinguishing leaves he took under the FMLA, and he was required to provide a sick leave affidavit for the future use of any sick leave. 9. In February 2006, based on Mr. Carton s excellent attendance, the Town rescinded the requirement that Mr. Carton submit sick leave affidavits. 2

3 Case 1:12-cv DPW Document 1 Filed 09/21/12 Page 3 of Mr. Carton did not receive any warnings for his attendance in 2006 or In 2008, between July and December, Mr. Carton took approximately 22 days of approved leave under the FMLA. The Town permitted him to use sick leave for these absences. 12. In December 2008, Mr. Carton received another written warning based on his use of leave, which was a direct result of approved leaves he took under the FMLA, and he was again required to provide a sick leave affidavit for the future use of any sick leave. He has received no further warnings since that time. to lieutenant. exam. 13. In November 2009, Mr. Carton took the required civil service exam for promotion 14. Mr. Carton received the third highest score on the November 2009 lieutenant 15. The candidates who received the two highest scores were promoted, so Mr. Carton was next in line for promotion. 16. In January 2011, a temporary lieutenant position opened up. 17. Mr. Carton was passed over for that promotion based on his history of frequent absenteeism. The Town cited to his use of 93% of his accrued sick time, an average of 13.9 per year which is more than double the department wide average of 5.7 days per year. The calculation of that average included sick time used for approved FMLA leaves. Commission. 18. In February 2011, Mr. Carton filed a complaint with the Civil Service 19. In April 2011, that complaint was resolved through a written agreement. Pursuant to that agreement, the Town agreed as follows: The Town agrees that with respect to future promotional opportunities applied for by Firefighter Carton, it will not include absences that have been approved by the 3

4 Case 1:12-cv DPW Document 1 Filed 09/21/12 Page 4 of 5 appropriate Town official(s as Family Medical Leave Act absences in its computation of total sick time usage as it relates to said promotional opportunities. 20. In September 2011, a permanent lieutenant position opened up. 21. Even though he was the highest ranking candidate, Mr. Carton was again passed over for promotion, this time based on his history of disciplinary action related to attendance issues. The Town referenced the warnings he received in 2003, 2005, and 2008, the last of which was close to two years old. In addition to being outdated, the 2008 warning resulted directly from Mr. Carton s use of approved FMLA leave. COUNT I Family & Medical Leave Act 29 U.S.C et seq. 22. The Town s decision to pass over Mr. Carton for promotion to lieutenant constitutes discrimination against Mr. Carton based on the exercise of his rights under the FMLA, in violation of 29 U.S.C COUNT II Breach of Contract 23. The Town s decision to pass over Mr. Carton for promotion to lieutenant constitutes a breach of contract. PRAYER FOR RELIEF WHEREFORE, the Mr. Carton requests this Court to enter appropriate injunctive and declaratory relief, including an order that he be promoted to the position of Lieutenant, and award him all lost pay, benefits, damages, punitive damages, attorneys fees, and costs, as provided by law. 4

5 Case 1:12-cv DPW Document 1 Filed 09/21/12 Page 5 of 5 JURY DEMAND Plaintiffs hereby demand a trial by jury as to all issues so triable. SCOTT CARTON By his attorneys, /s/ Stephen S. Churchill Stephen Churchill (BBO# Claret Vargas (BBO# LICHTEN & LISS-RIORDAN, P.C. 100 Cambridge Street 20 th Floor Boston, MA ( schurchill@llrlaw.com cvargas@llrlaw.com Dated: September 21,