On October 18, 2017

Fired administrator alleges retaliation

By Alan Keays, VTDigger

The fired town administrator in Rutland Town has sued the municipality, alleging the Select Board’s decision to terminate him was an act of retaliation and violated the town’s personnel policies.

Joseph Zingale, who worked for the town for more than three decades before he was axed, is seeking unspecified damages in the lawsuit his attorney, Paul Gillies, filed Wednesday in Rutland Superior Court. Zingale’s five-count lawsuit includes claims of wrongful termination and violation of his due process rights.

“The Select Board’s September 11, 2017, decision to terminate [Zingale’s] employment as Town Administrator for ‘gross misconduct and insubordination’ was in retaliation for his pursuit of assistance in resolving an ongoing dispute with a member of the Town’s Select Board,” the lawsuit stated. “The Town’s actual reason for termination constitutes a bad cause termination in violation of the covenant of good faith and fair dealing,” the lawsuit continued.

Terenzini issued a statement defending the board’s action in firing Zingale. “A motion was made to terminate Mr. Zingale for gross misconduct and insubordination, which was followed by a unanimous vote of the full, five-member Select Board of Rutland Town,” the statement read. “The Town of Rutland will vigorously defend our decision to terminate.”

The Select Board, in voting last month unanimously to fire Zingale, cited “gross misconduct” and “insubordination” on his part. Board members have refused to publicly specify what that misconduct entailed or how Zingale was insubordinate.

The lawsuit by the terminated town administrator says there is more to the story.

The 10-page filing talks of an ongoing issue Zingale had with Chris Kiefer-Cioffi, a Select Board member, over email, and her contention that Zingale was excluding her from email communications between him and other board members. In August, the lawsuit stated, Zingale contacted Terenzini in hopes of resolving that dispute.

However, later that month, on Aug. 24, Terenzini spoke to Zingale about a different issue–not submitting time sheets in a timely fashion, according to the lawsuit. “[Zingale] disputed the requirement to submit a time sheet, as Select Board chair Terenzini does not require other department heads to consistently submit time sheets,” the filing stated.

A few days later, on Aug. 29, Terenzini asked to speak with Zingale in private. Terenzini told Zingale he was placing in the town employee’s personnel file a written warning for failing to submit a time sheet, according to the lawsuit.

“During this private meeting, [Zingale] followed up with Select Board Chair Terenzini regarding the email issue and again asked for assistance resolving the situation,” the lawsuit stated. “Selectboard Chair Terenzini informed [Zingale] that no investigation would occur and that if he kept asking about the issue he would be fired.”

As Zingale continued to press that matter, according to the filing, Terenzini suspended him and told him to leave the town office building “immediately or he would call the police.”

The lawsuit alleged that Terenzini’s “unilateral suspension,” without Select Board action, was in violation of the town’s employee discipline policy and Zingale’s rights to due process.

The day after his suspension, Aug. 30, Mary Ashcroft, another Select Board member, notified Zingale in writing that the board had set a meeting for Sept. 6 and asked that he attend to explain why he should not be terminated, the lawsuit stated. Zingale did not attend that meeting, nor the Sept. 11 meeting where the board made and approved the motion to terminate him.

On Sept. 18, the lawsuit stated, Zingale received another letter from Ashcroft, this one summarizing the events between Aug. 29 and Sept. 11. “After consideration of the events surrounding your suspension, your adversarial and hostile attitude toward the [Select Board], the [Select Board] concluded that it no longer had the necessary trust and confidence that you would faithfully and reliably perform your duties as Town Administrator going forward,” read an excerpt from that letter, included as part of the lawsuit.

The letter did not include any post-termination process for Zingale to challenge the board’s action, which the lawsuit alleges is a violation of the town’s personnel policies.

Zingale said Wednesday that he pushed the town and the Select Board to follow proper procedures and processes, and that seemed to create tension with some board members.

He added, “I’m very happy this is moving forward, and I can’t wait until we get to the point of mediation or even court just to put this matter to bed and hopefully clear my reputation and work history.”

Terenzini said Wednesday in his statement that he took issue with an assertion in the lawsuit that termed Zingale a “de facto” town manager for Rutland Town. Town managers in Vermont can be fired only for cause. The Select Board chair said the town had never voted to adopt the town manager form of government, and therefore, those statutory rights do not apply in this case.

“All of the employees of the town of Rutland, including the town administrator, have always been, and to this day remain, at-will employees,” Terenzini said in the statement. “This means that both the employee and the town have the freedom to decide to end the employment relationship for any reason or for no reason at all.”

“The allegations of the complaint regarding the reason(s) for Mr. Zingale’s termination are simply not accurate,” Terenzini added. “While no particular reason for the termination of an at-will employee is required, the Select Board decided in the exercise of its discretion that, as a result of Mr. Zingale’s gross misconduct and insubordination, it no longer had the necessary trust in Mr. Zingale’s ability to perform the duties of town administrator reliably and to carry out the directives of the Select Board.”

In the lawsuit, Zingale is seeking unspecified monetary damages for mental anguish and emotional distress as well as for the impact he says the action has had on his reputation.

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