Marilyn Ozols Loses State Labor Board Case, But Wins Right To Proceed With Lawsuit Against Town

Marilyn Ozols, , lost her case against the town before the state labor board in which she alleged that she was fired because of her pro-union activities, First Selectman Fillmore McPherson said Monday night during the Board of Selectmen meeting.

"The state labor board has dismissed that claim, finding no merit," McPherson said. "She can still appeal, but this is a good first step."

McPherson noted Ozols has also f which is "proceeding at the pace of a sleepy snail."

Ozols may revisit the state labor board case after discovery on U.S. District Court case, which is proceeding

Ozols lawyer, Heena Kapadia, of the New London-based law firm Madsen, Prestley & Parenteau LLC, said Ozols may decided to revisit the state labor board decision after discovery on the court case reveals additional details about the firing. "The administrative proceedings before the state labor board do not provide claimants the opportunity to conduct a formal investigation or discovery," Kapadia said. "This was dismissed without any form of investigation by the state labor board.  Because Marilyn had no opportunity to conduct an investigation herself (because there is no procedural mechanism provided for as part of the administrative proceedings to do so), they basically dismissed the case without sufficient information."

At the center of Ozol's case against the town is her contention that her boss, Town Engineer Michael J. Ott, asked her to make exceptions for him and to allow him to move forward on zoning applications that were not complete and not in accordance with the town's zoning laws and regulations.

Her case mentions Ott's application for the town garage, which not only is a factor in the lawsuit, but also was a cause of upset and bitter disappointment for town residents who live near the garage who said in a series of public forums that they were never given a chance to fully review plans for the garage and that they were stunned when they found out the extent of the project and the impact it would have on their neighborhood. Neighborhood residents maintain that they continue to suffer as a result of the project, in that their property values have declined and that, recently, potential buyers for their homes have specifically expressed concern about the town garage when citing their decision not to buy in that neighborhood.

Neighbors cite town's failure to follow its own rules

At a series of meetings, and in letters submitted during those meetings, the neighborhood residents have objected to the extent of the town garage expansion, and the town's failure to follow its own rules when it came to notification of the neighbors relating to town proceedings relating to it.

They also raised concerns about the safety of certain aspects of the project, including the placement of gas tanks and pumps.

The town's boards and commissions have granted to the town the right to proceed on the town garage project.

U.S. District Court judge denies town's motion to dismiss on statutory claims

Earlier this month, U.S. District Court Judge Stefan R. Underhill granted in part and denied in part the town's motion to dismiss Ozols' court case. In an oral ruling, Underhill denied the town's motion to dismiss statutory claims under Conn. Gen. Stat. § 31-51m and Conn. Gen. Stat. § 31-51q.

“This is a great victory for Ms. Ozols.  Judge Underhill quickly recognized the lack of merit as to the Town’s arguments to support the motion to dismiss,” said Kapadia, Ozols' lawyer.

Connecticut General Statute § 31-51m provides protection of employees who discloses employer's illegal activities or unethical practices.

Connecticut General Statute § 31-51q says an employer is liable when an employee is disciplined or discharged because the employee excercises certain constitutional rights. "Since § 31-51q prohibits retaliation against employees for exercising rights under sections 3, 4, and 14 of the first article of the Connecticut Constitution in addition to the First Amendment to the U.S. Constitution, it is also necessary to recognize that the Connecticut Supreme Court has held that the Connecticut Constitution provides greater protection for free speech than the U.S. Constitution," says Ozol's opposition to the town's motion to dismiss.

Ozols says she was fired for speaking out against her boss, who wanted her to engage in unethical behavior

In the suit, Ozols says that she was fired for speaking out after her supervisor, Ott, filed a zoning application for the town garage that was incomplete. Her claim is that she was attempting to follow the town's zoning regulations and that Ott wanted her to bend the rules which she felt she could not do.

While denying the town's motion to dismiss on 31-51m and 31-51q, U.S. District Court Judge Underhill did grant the town's motion to dismiss common law claims relating to intentional infliction of emotional distress, Kapadia said.

Kapadia said the process of discovery, on the claims that will go forward, will provide Ozols with information that will allow her to decide whether she wants to appeal the labor board's decision.

Ozols court case mentions concerns about retaliation for union activities

Ozols' opposition to the town's motion to dismiss says, "In or around January of 2011 a petition was filed by the United Public Service Employees Union (“UPSEU”) to represent Town employees for the purposes of collective bargaining; Plaintiff was in favor of the union and was vocal in her support for it, causing Defendants Ott and McPherson to become even more hostile toward her."

The opposition to the town's motion to dismiss says:

At the time [Ozols] was hired as the Town's PZA, the Town's Planning and Zoning Commission (hereinafter referred to as the “Commission”) had decided that zoning regulations were to be given a strict reading and consistent application to all applicants in order to preserve and maintain the character and appeal of the Town ... At all times relevant to this action, Plaintiff took direction from the Commission with respect to zoning matters and requirements for zoning applications, and was commended for her work by the members of the Commission ... At all times relevant to this complaint, Plaintiff made every effort to consistently, fairly, and correctly apply the zoning regulations and directives of the Commission to all zoning applications, including those submitted by the Town itself ... Plaintiff believed it was in the best interest of the Town taxpayers to have an even, consistent, and correct application of zoning rules in order to maintain the character of the Town so that all taxpayers were treated the same, and the laws and regulations governing zoning matters were correctly enforced ... Prior to Defendant MacPherson's election as First Selectman for the Town, when conflicts arose with respect to Town zoning applications and the directives of the zoning regulations and the Commission, the Commission was involved in the process ... Additionally, either solely or in conjunction with the First Selectman, the Commission was the entity that evaluated Plaintiff's performance to prevent her from being unfairly punished or retaliated against for following the Commission's directives and zoning regulations ... It was also understood by all involved that the Commission had the sole authority to regulate and interpret zoning matters, and those outside the Commission acknowledged that they did not have the authority to reprimand or discipline Plaintiff in zoning matters since they had not been designated as agents of the Commission under Section 8-3(e) of the Connecticut General Statutes ... In 2010 and prior years, Defendant Ott submitted zoning applications on behalf of the Town that did not meet the requirements of the Town's zoning regulations, requiring Plaintiff to seek compliance from Defendant Ott ... In February of 2010, Defendant Ott submitted a zoning application on behalf of the Town with respect to a Town garage that was incomplete, based on the requirements of the applicable zoning regulations, and Plaintiff advised Defendant Ott of that deficiency ... That same month, Defendant McPherson issued a verbal warning criticizing Plaintiff for expressing the view that Defendant Ott's application was incomplete and that modifications to the building required additional review ... Plaintiff explained that the zoning regulations applied evenly to all applicants, that she did not have the authority to ignore them, and that it would be unethical for her to do so.

Board of Selectmen fired Ozols in June 2011, saying attorney's claims "have nothing to do with our actions"

First Selectman Fillmore McPherson has said that Ozols was fired, among other reasons, for "inconsistent performance, .. a pattern of uncooperative behavior, ... poor judgement ..., and failure to communicate ... "

 "The Board of Selectmen held two days of public hearings after which we issued Findings and Conclusions.  These documents demonstrate that the issues raised in Atty. Kapadia’s ... are capricious and have nothing to do with our actions.  Ms. Ozols was clearly terminated for entirely different reasons," has said. The Board of Selectmen voted to fire Ozols in June 2011 after determining that she was technically competent, but also asserting that she was uncooperative and unprofessional, disrespectful, and because she failed to properly recognize Ott as her supervisor.

In its memo to support its request to dismiss the court claims, the town said the court did not have subject matter jurisdiction over some of the claims and that Ozols complaint did not "state a claim upon which relief can be granted."

This story was changed on Thursday, March 1, 2012 at 2:50 p.m. to add comments from Marilyn Ozols' lawyer.