Rose Kallor Secures ADA Win for Town of Westport

By Andrew B. F. Carnabuci

Rose Kallor, LLP is pleased to announce that attorneys Michael J. Rose and Andrew B. F. Carnabuci have secured a dismissal of a Superior Court lawsuit alleging breach of contract against the Town of Westport.

The case—Lombardi v. Town of Westport, FBT-cv22-6119042-S—concerned the allegedly wrongful denial of Mr. Lombardi's application for a disability pension.  The court (Clark, J.) granted the Town's motion for summary judgment, holding that defensive collateral estoppel barred the claim, and also holding in the alternative  that the claim failed because there was no evidence Mr. Lombardi could point to of any contractual entitlement to the disability pension he sought.

Mr. Lombardi was a former firefighter in the Westport Fire Department.  He claims that in the course of his employment, he suffered hearing loss, and applied for a disability pension.  He was denied the disability pension he sought and brought a CHRO complaint in 2018 alleging that he was improperly denied a disability pension upon his retirement in violation of the Connecticut Fair Employment Practices Act and the Americans with Disabilities Act. Consistent with the Pension Board's policy, Lombardi was directed to get three independent medical examinations from physicians selected by the Pension Board to determine whether his disability qualified him for the disability pension he sought. Mr. Lombardi failed to get the three required examinations finding him disabled and, subsequently, the Pension Board denied his request for a disability pension. The two examinations Mr. Lombardi obtained from his treating doctors, which the board accepted in lieu of independent examinations, suggested that he was disabled from his duties, but the one independent medical examination by a board-appointed doctor stated that he was not disabled.

After a public hearing and subsequent briefing, the Presiding Referee dismissed the complaint after finding that Lombardi was not a “qualified individual” within the meaning of Title II because he lacked any independent medical examination finding him totally disabled from his duties. The CHRO found that the requirement of at least one independent examination finding the applicant disabled from all duties was an "essential eligibility requirement" for the pension and not simply a “rule, policy, or practice” that could be modified or was subject to any duty to accommodate, and found that Mr. Lombardi had failed to meet the requirements for a disability pension.

Mr. Lombardi then brought the instant claim in Superior Court, pleading the same set of facts giving rise to the same legal injury, but reframing the cause of action as breach of the pension plan contract instead of disability discrimination.

The Town moved for summary judgment pre-discovery, on the grounds that defensive collateral estoppel barred the relitigation of the claim, since it had already been fully and fairly litigated before the CHRO Office of Public Hearings.  The Town also argued that summary judgment was warranted on the alternative grounds that there was no genuine material factual dispute that Mr. Lombardi was not contractually entitled to the disability pension he sought.

The court granted the Town's motion for summary judgment, on the grounds that defensive collateral estoppel barred the claim as a matter of law, and on the alternative grounds that collateral estoppel notwithstanding, there was no genuine material factual dispute that Mr. Lombardi was not contractually entitled to the disability pension he sought.  The case was therefore dismissed.

For more information on the ADA and reasonable accommodations, please contact Rose Kallor at 860.361.7999 or visit us at www.rosekallor.com

Counsel on this matter: Michael J. Rose, Esq. and Andrew B. F. Carnabuci, Esq.

About Rose Kallor:

Rose Kallor, LLP is a labor and employment law firm with offices in Hartford, Connecticut and New York, New York. Rose Kallor concentrates its practice in the representation of public and private-sector employers, individuals, and municipalities in the New England and New York Metropolitan area. Committed to high-quality, professional representation, the attorneys at Rose Kallor stand ready to provide legal counsel on all aspects of employment and labor law. For more about Rose Kallor, visit our website at https://www.rosekallor.com/.