Destino Sues Town of Niagara, Names Richards

Lawyer Johnny Destino brings suit against Town of Niagara

Easy Rider: Town Supervisor Steve Richards denies claims and is ready to fight.

In our May 21 issue, we reported on a personnel matter that came to light at a Town Board work session the week before on May 16th.

It was about two summer recreational workers, one who was reappointed, the other who was not.

The board had gotten a report from the town's recreation director, Susan Kotlarz, about some 28 people approved for summer jobs at the town park.

One of these, Jeffrey A. Mitchell, was replaced by another town employee, Colleen Fending, despite Fending's failure to obtain the recommendation of Kotlarz.

The Town Board decided to override Kotlarz’s decision to hire Mitchell. Supervisor Steve Richards said at the time the decision was made on the "advice of attorneys."

The next day, Kotlarz resigned.

Now another attorney has entered the mix who believes the town got bad advice.  On Friday, June 14, local attorney Johnny Destino filed a notice of claim against the city on behalf of Mitchell.

Destino said he will file suit against the town and several elected officials in their individual and official capacities. The notice of claim lists 13 causes of action including several alleging civil conspiracy.

Town officials have refused to discuss personnel matters but sources indicate Fending accused Mitchell of sexual harassment.

According to the notice of claim prepared by Destino, “Town officials acted upon and/or promoted false allegations against Claimant made by another Town employee which they knew, or had reason to know, were false and/or fabricated.”

“From what I have been able to learn so far, it appears that Ms. Fending and several town officials conspired to injure my client. I won

’t comment beyond that until the suit is filed,” said Destino.

When contacted by the Reporter, Fending, who had worked for the town for six years, said she originally received a letter from Kotlarz telling her she was terminated this year.

"When I found out I did not receive my job back, I questioned it," Fending said, "and I was receiving answers that were false and had no substance to them. That’s when I went to Steve (Richards). I kind of showed (Richards) reasons why I deserved my job back and he agreed. I personally went out of my way to approach Steve about it."

Asked if she was suing the town for sexual harassment, she answered, "No. My intentions were not to make anybody look bad. I just wanted my job back."

Why were you returned to work, while Mitchell was not?

"I'd rather not comment on that. My big issue was I was not given my job back for reasons that were unfair and unjust," Fending said.

While Destino wouldn’t comment on specifics, it appears Councilman Danny Sklarski’s comment to the Reporter after the May 16 meeting piqued Destino's interest.

Sklarski said Fending was an "exemplary employee."

Destino says this was in contradiction to Kotlarz’s assessment of her and suggests Sklarski was involved in making the change to the appointments’ list.

At the time of his not being rehired, Mitchell told the Reporter that he had no plans to sue the town.

Richards also denied meeting Fending in private.

"I've never even met the person (Fending) who complained against Mitchell before she made the complaint”, Richards said. "I also excused myself instantly from the case once the victim told me the name of Jeffrey Mitchell, being fully aware of the Mitchell family's witch hunt against me."

A pair of attorneys from Hodgson Russ – Michael Risman and Elizabeth Clarkson, representing the town - met with Fending and subsequently recommended she be rehired.

According to Fending, shortly after she made her complaint, two FBI agents questioned her as to whether Richards put her up to making up this story about Mitchell.Fending said she told the agents that she would never make up a story about someone sexually harassing her, adding she never met Richards before she came in to make a complaint about losing her job.

Destino's notice of claim charges the town with violation of Constitutional due process rights to property and liberty protected under the Fifth and Fourteenth Amendments, wrongful discharge, defamation, abuse of authority, breach of fiduciary duty, misrepresentation, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, conspiracy to violate Constitutional due process, conspiracy to commit wrongful discharge, conspiracy to commit defamation and conspiracy to commit intentional infliction of emotional distress.

Richards says Mitchell is lying to his attorney and everyone else.

"I look forward to seeing Jeffrey Mitchell under oath in NYS Supreme Court and then we will find out who has conspired against who since October of 2011," said Richards.

Sklarski also said he believes the town was right.

"They started this, we end it,” Sklarski said. “I say, go to trial."

The Reporter had contacted Mitchell back in May.

He said, "I'm not going to talk about anything. Nothing untoward happened (to Fending). I was advised by my attorney that I should not talk about any of this... I am looking at a copy of your paper and it says 'The Truth is Always Fair'…. I wish you would be fair and not print my name and ruin my reputation. I did not do anything wrong."

A call to Susan Kotlarz was not returned.

Attorney  Risman explained that the town "investigated the matter, as is legally required, based on federal and state law for any kind of employee complaint, including sexual harassment. We can't ignore it. We did what we were legally obligated to do.”

Risman said the claim by Mitchell is a "totally meritless and frivolous lawsuit. These are part-time employees who are 'at-will' employees. They serve at the pleasure of the Town Board.  The  board just didn't reappoint a seasonal employee. There are laws about conspiracy but there is no such thing as a conspiracy to commit defamation. There was no intentional infliction of emotional distress. We have no fiduciary duty to Mitchell. He has no constitutional right to an 'at-will' job. There is not an ounce of merit to this litigation.

"The town decided not to reappoint Mitchell. We did not attempt to ruin his reputation. The town thought it was prudent to reappoint her. We tried to do it discreetly and not hurt him. We were not trying to hurt him. He is the one bringing attention to it.”

It's actually a terrible argument. Sort of like saying I'm in Albany, where I should be passing this bill, and I'm mad you're calling me out for not passing it when I'm not there to defend myself, even though if I was there to defend myself I'd be doing even less to pass it.