standing Westerly Town Hall

WESTERLY — It was the early days of the COVID-19 pandemic last March, and tensions were running high, including on Broad Street in Town Hall. Workers were, allegedly, pushing for permission to work from home and asking for the building to be sanitized and for the public's access to be limited.

According to a federal lawsuit filed recently against the town by Nancy M. Markey, its former human resources director, it was against this backdrop that she was fired by Town Manager J. Mark Rooney in retaliation for informing him she planned to report alleged violations of COVID-19 protocols to state and federal agencies. The lawsuit also asserts violations of both federal and state family medical leave protections.

The lawsuit also describes the mood in Town Hall when two workers tested positive for the coronavirus and detailed concerns with how Rooney was handling the pandemic, including whether employees would be informed if other employees tested positive for the virus. Many of the events depicted in the lawsuit occurred prior to Town Hall eventually being closed for a special cleaning and before an appointment-only policy was put in place during the first surge of the virus.

Rooney and Town Attorney William J. Conley Jr. declined to comment or answer questions for this article, citing policies of not commenting on pending litigation. The town has yet to file a formal response to the lawsuit, which was filed Dec. 22 in U.S. District Court for the District of Rhode Island in Providence.

The lawsuit also alleges that Rooney failed to quarantine himself after experiencing symptoms of the virus and getting tested and that he ordered Markey not to tell anyone that he had been tested. Other accusations made by Markey include that Rooney initially failed to inform her that a Town Hall worker had tested positive for the virus, despite Rooney having asked Markey to handle employee COVID-19 issues, and that Rooney swore at Markey on one occasion.

Rooney and the town are named as defendants in the lawsuit, which contends that Rooney retaliated against Markey when he put her on administrative leave the day after she sent him an e-mail stating her intent to complain to state agencies about the town's alleged failure to comply with COVID-19 executive orders issued by Gov. Gina Raimondo. Markey worked for the town from October 2018 until she was removed from her position in May following her placement on administrative leave in April.

The retaliation continued, the lawsuit alleges, when the town unsuccessfully contested and appealed Markey's application for unemployment benefits.

"... The director of the Rhode Island Labor and Training Department issued a decision that [Markey] was entitled to unemployment benefits because the investigation conducted by [the department] failed to show evidence of intentional wrongdoing" by Markey, the suit asserts.

The town appealed the director's decision, arguing that Markey had been terminated for insubordination and failure to follow leave and attendance policies, but the appeal-hearing officer found Markey had followed routine steps for leaves she took and that there was no evidence of intentional wrongdoing.

"The [hearing officer] further found that the alleged insubordination was centered on disagreement over the handling of COVID-19 protocols that eventually led to her termination, which did not constitute misconduct in connection with the workplace," the lawsuit states.

A second appeal by the town to stop Markey from receiving unemployment benefits also failed.

Markey's Family Medical Leave Act claims stem from leaves she took in March and April. The lawsuit also alleges Markey's rights under the federal Families First Coronavirus Response Act were violated when she was placed on administrative leave after taking a medical leave to await the results of a COVID-19 test.

The termination of her employment also amounts to a violation of Markey's rights under the state Whistleblowers Protection Act, according to the the suit, which alleges she was fired for filing complaints with Raimondo's office and other state agencies. The lawsuit seeks unspecified back and other pay or reinstatement of Markey's position, compensatory and punitive damages, as well as attorneys' fees and court fees.

Richard Sinapi, Markey's lawyer, said the damages that will be sought had not been calculated but would be based on lost wages and benefits and on the impact of the termination on Markey's reputation.

"... And there is some emotional pain and suffering that is associated with an abrupt termination from a publicly appointed position where you are trying to do your best job and you get the rug pulled out from under you," Sinapi said.

In July of 2019 Markey received an "exceeds expectations" job performance review from Rooney and her pay was increased from $85,000 per year to $90,125, according to the lawsuit.

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