Jason DeMent asked for light duty to seek treatment for an eye disease. He alleges Chief Mark Cavallo denied that request because DeMent spurned the chief’s advances.
By Matt Skoufalos
A Haddon Township police officer battling a degenerative eye disease is claiming that he was “constructively terminated” by the township after he asked for a medical accommodation to resolve his health issues.
Moreover, Officer Jason DeMent, who is suing for the reinstatement of his position plus back pay, has also alleged that he was “repeatedly and continuously” sexually harassed by Haddon Township Police Chief Mark Cavallo, and that his refusal of these alleged advances led to his effective dismissal.
Both men are individuals of standing within the community. DeMent is president of his union, Haddon PBA #257; a man outspoken enough to have delivered publicly a vote of no-confidence in Commissioner Paul Dougherty to the township government in 2013. Cavallo, in addition to being the department chief, is president of the Haddon Township School Board.
At the heart of the matter is not only whether DeMent was wrongfully denied a reasonable medical accommodation for his illness, but whether he should have benefited from a longstanding departmental policy of assigning temporary light duty to officers recovering from injuries suffered on the job.
Request for accommodation
For nine months in 2012-14, DeMent had been approved for light duty while recuperating from a shoulder injury sustained in the course of duty, said his attorney, Zachary Wall of the Haddonfield law firm, Wall and London, LLC.
Wall said his client requested that the same privilege again be extended to him while he battled his current ailment, a degenerative eye condition called Stargardt Disease.
DeMent alleges that after informing his superiors of his diagnosis in June, he was suspended without pay, and forced to use up his accumulated paid time off to draw a paycheck. After twice appealing his circumstances, DeMent was placed involuntarily on medical leave under the federal Family and Medical Leave Act (FMLA) on August 5, with the notification that he would be terminated “on or about October 28, 2015,” according to the lawsuit.
That decision interfered with DeMent’s “entitled right to take a protected medical leave when he actually required it in the future,” the complaint says, noting that the Haddon Township Police Facebook page posted a hiring announcement the same day DeMent was placed on leave.
Wall said DeMent had intended to use his FMLA accommodation to participate in experimental therapies at Wills Eye Hospital, where his doctor, Carl Regillo, is heading up some of the earliest clinical trials on Stargardt Disease in the United States. According to the lawsuit, the only medical restriction Regillo recommended for DeMent was that he not drive at night or in unfamiliar areas, but that he was otherwise “medically able to continue working.”
Wall did not say whether DeMent, 36, would have considered taking a disability retirement, entitling him to as much as 40 to 50 percent of his $88,000 annual salary. Instead, the attorney argued, DeMent hoped the light-duty assignments would last only as long as his treatment required.
“Before Officer DeMent filed the lawsuit, he did try to come up with alternate remedies with his employer, but was unsuccessful,” Wall said. “He’s not requesting modified light duty for the remainder of his career. He’s seeking this reasonable request while he seeks treatment.”
A spokesperson for Ocata Therapeutics, the developers of the clinical trials, said that the experimental treatment is “an investigational product” that consists of injecting stem cells into the eyes of patients. Even if these injections were to prove therapeutic in DeMent’s case, there is no known cure for Stargardt Disease, the spokesperson said, adding that “initial, intermediate top-line data from the study” wouldn’t be available until mid-2016 at the earliest.
Discretion vs. discrimination
The Township may not have been willing to assume the liability of putting on officer with failing vision on duty of any kind; however, DeMent’s lawsuit alleges that the decision was couched in terms of precedent.
In the complaint, DeMent said that Cavallo and the Township solicitor “had decided that they were not going to accommodate [him] in any form whatsoever” for fear of “open[ing]the ‘floodgates’ to complaints from other police officers” with similar issues.
“According to Defendants, Plaintiff’s situation was no different from a police officer who breaks his/her leg while skiing on vacation,” the suit reads. “The Township did not want to start a precedent of accommodating off-duty ‘injuries.’”
DeMent contends not only that there is available light duty work within the department—including, he suggests in the lawsuit, Megan’s Law research, court security, and overnight parking—but that reserving such work exclusively for officers injured on the job is needlessly restrictive.
“If there’s this available work, and a need for this work, why is the department taking a position that someone can only do this inside work if they’re injured on the job?” Wall said.
Furthermore, Wall said, as light duty is only assigned at the discretion of the chief, the application of that discretion runs the risk of becoming discriminatory “based on the motivation for the discretion.”
DeMent alleges that Cavallo denied his request for light duty because “the officer refused and objected to the chief’s advances before the accommodation request,” Wall said. This behavior allegedly included propositioning DeMent, pinching his leg, stroking his face, and “routinely [sending]inappropriate text messages of a sexual nature.”
“The ultimate question is going to be whether the chief’s feelings motivated the employment decisions,” Wall said.
When asked why DeMent didn’t file a formal complaint about Cavallo prior to having been denied his light-duty request, Wall said the timing of the incident is immaterial.
“Every single employee has the right not to be touched or be subject to comments that they think are inappropriate,” he said. “When it’s your direct supervisor doing it, I think it’s easier said than done to actually speak up and complain about it.”
Haddon Township legal counsel Eric Risso offered few remarks, save that “the township intends to defend the matter vigorously.
“There’s no evidence I’ve seen to support any of [DeMent’s] allegations,” he said.
Risso also said that Haddon Township has “successfully defended against” other employment-related lawsuits, and has already moved for a summary dismissal of five of the six counts in the suit. These include its failure to provide reasonable disability accommodation, wrongful termination for reasons of discrimination against a person with a disability or a perceived disability, retaliatory termination, and violation of FMLA.
Wall said that the court should decide in September or October whether to take the harassment charges to a jury trial; following that, he said, is likely a year-long, pre-trial discovery period.