Watertown Firefighter Suing Town After Being Passed Over for Promotion

A Watertown firefighter has sued the town of Watertown in Boston Federal Court claiming that he was passed over twice for promotion because he used he Family and Medical Leave Act while his wife underwent medical treatment, according to court papers.

Scott Carton, joined the fire department in July 1999, and in 2009 he took the civil service exam and applied for the lieutenant position. The suit claims he was passed over two times in 2011, despite having the third highest score, because of his use of the medical leave days. He filed the suit on Sept. 21, 2012, seeking a court order to require the town to promote him to lieutenant.

Watertown Patch had not received any response from town officials for comment on the suit before the article was published.

[NOTE: Town Manager Michael Driscoll released a statement on Sept. 26 about the suit. To read it click here.]

Sick Leave for Wife

Beginning in 2003 he took time off while his wife had treatment for “a prior trauma,” according to the court document, and he received oral warnings for taking sick leave that year.

In 2004, he was approved to leave under the FMLA multiple times. In 2005, according to the document, Carton began to receive written warnings for using the leave time and he was required to submit a sick leave affidavit to use any more sick leave.

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The following year, however, that requirement was lifted because he had “excellent attendance,” the papers read.

In 2008, Carton used 22 FMLA days from July to December, and in December he received another written warning and again had to start submitting affidavits to receive leave.

Seeking Promotion

When Carton applied for the lieutenant openings in 2009, the two candidates ahead of him were chosen. Then in 2011, a temporary lieutenant position opened up and he was passed over for his “history of frequent absenteeism,” according to court papers.

Town officials noted that he used 93 percent of his sick leave time, which works out to 19.3 days a year, or more than three times the department average of 5.7 days, according to the court document. These calculations included the sick leave used under FMLA.

In February 2011, Carton filed a complaint with the Civil Service Commission, and he and the town came to an agreement saying:

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 appropriate Town official(s) as Family and Medical Leave Act absences in its computation of total sick time usage as it relates to promotional opportunities.

In September 2011, another lieutenant position opened up and Carton was again passed over, “Even though he was the highest ranking candidate,” the suit claims.

The denial of the promotion references a “history of disciplinary action related to attendance issues,” according to the court document. Town officials noted the warnings issued to Carton in 2003, 2005 and 2008.

In the suit, Carton seeks an order from the court “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,” the court papers read.