Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court ALLOWS Defendant's partial motion to dismiss, D. 23, as to Count I, but only as to the claims against the Town, and Delehanty and Faison in their official capacities; Count II; and Count III. The Court otherwise DENIES Defendants' partial motion to dismiss, D. 23, so the case will proceed on the remainder of Count I, the § 1983 claim against Delehanty and Faison in their individual capacities, and Counts IVIX. (Hourihan, Lisa)

U.S. District Court, D. Mass. · from CourtListener · 18 pages · 200 KB
open the file ↗ · original at the source ↗

1 
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
)
FERRUCCIO A. ROMEO, )
)
Plaintiff, )
)
v. )
) Case No. 22-cv-10573-DJC
)
TOWN OF WINTHROP, TERENCE M. )
DELEHANTY, and AUSTIN FAISON, )
)
Defendants. )
)
__________________________________________) 
MEMORANDUM AND ORDER 
CASPER, J. May 23, 2023 
I. Introduction 
Plaintiff Ferruccio A. Romeo (“Romeo”) has filed this lawsuit against Defendants Town
of Winthrop (the “Town”), Terence M. Delehanty (“Delehanty”), and Austin Faison (“Faison”)
(collectively, “Defendants”) alleging a variety of federal and state law claims relating to his
employment as a Winthrop Police Sergeant. D. 22. Defendants have moved for dismissal only as
to Counts I–III, D. 23, which allege 42 U.S.C. § 1983 liability for violating Romeo’s federal rights
(Count I), violations of the Americans With Disabilities Act (“ADA”) (Count II), and violations
of the Family and Medical Leave Act (“FMLA”) (Count III) against all Defendants, D. 22. For
the reasons stated below, the Court ALLOWS Defendants’ partial motion to dismiss as to Count
I, but only as to the claims against the Town, and Delehanty and Faison in their official capacities;
Count II; and Count III. D. 23. The Court otherwise DENIES Defendants’ partial motion to 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 1 of 18

2
dismiss, D. 23, and the case will proceed on the remainder of Count I and the other remaining
claims, Counts IV–IX. 
II. Standard of Review 
A defendant may move to dismiss for a plaintiff’s “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). To withstand a Rule 12(b)(6) challenge, the Court
must determine if the complaint “plausibly narrate[s] a claim for relief.” Schatz v.
Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation omitted). Reading
the complaint “as a whole,” the Court must conduct a two-step, context-specific inquiry. García-
Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (citations omitted). First,
the Court must perform a close reading of the claim to distinguish the factual allegations from the
conclusory legal allegations contained therein. Id. (citation omitted). Factual allegations must be
accepted as true, while conclusory legal conclusions are not entitled credit. Id. (citation omitted).
Second, the Court must determine whether the factual allegations present a “reasonable inference
that the defendant is liable for the misconduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46
(1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In sum, the complaint must
provide sufficient factual allegations for the Court to find the claim “plausible on its face.” García-
Catalán, 734 F.3d at 103 (quoting Iqbal, 556 U.S. at 678). 
III. Factual Background 
The following facts are drawn from Romeo’s second amended complaint, D. 22, and are
accepted as true for the purpose of resolving the pending motion to dismiss.
Romeo is a Winthrop Police Sergeant and served as the local union president of the
Massachusetts Coalition of Police Officers Local 421-AFL-CIO for approximately ten years from
December 2004 through February 2015. Id. ¶¶ 4, 9, 11. In 2015, the Town of Winthrop terminated 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 2 of 18

3
Romeo’s employment. Id. ¶ 12. After litigation before an arbitrator and the state courts, however,
he was reinstated in July 2018. Id. ¶ 13.
On February 28, 2019, Romeo filed a request for intermittent leave pursuant to the FMLA
to care for his aging parent and disabled spouse. Id. ¶ 14. Defendants approved that request. Id.
On August 5, 2019, nineteen hours were deducted without notice from Romeo’s accrued vacation
hours to offset hours owed. Id. ¶ 15. Due to Romeo taking his approved intermittent FMLA leave,
he was unable to attend trainings or perform other duties to offset the hours owed. Id. According
to Romeo, he was not given additional time or opportunities to offset the hours owed, as
customarily done by the Winthrop Police Department. Id. On August 8, 2019, he filed a grievance
which was denied first by (Police Chief) Delehanty and then by (Town Manager) Faison. Id. ¶ 16.
Winthrop police officers are granted ten hours of “Time Due” for not using or abusing sick
time within three consecutive months, for a total of forty hours per year. Id. ¶ 10. Pursuant to this
policy, Romeo submitted a Time Due request on September 5, 2019 for not calling out sick
between March 1, 2019 and August 31, 2019. Id. ¶ 17. After emailing to check the status of his
request, Romeo was informed that his request was denied because he had used 294 hours of sick
time between March 1, 2019 and August 29, 2019. Id. ¶ 19. Romeo contends that this was
improper because he was not calling out sick, but rather using pre-approved, intermittent FMLA
leave and opted to conserve his accrued sick time. Id. ¶¶ 19, 21. On December 23, 2019, he filed
a grievance for not receiving Time Due. Id. ¶ 23. Faison denied that request on February 18,
2020. Id. ¶ 24. Romeo alleges that other Winthrop police officers have received Time Due, despite
taking sick time. Id. ¶ 25. 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 3 of 18

4
On January 24, 2022, Romeo submitted a request for intermittent FMLA leave for a chronic
medical condition. Id. ¶ 38. He alleges that after the request was pending for eighty-one days, the
request was approved. Id.
Romeo also alleges that Defendants have interfered with his opportunities for promotions.
After being reinstated in 2018, Romeo submitted a letter of interest to participate in a promotional
examination for a Permanent Sergeant position. Id. ¶ 28. He also submitted a letter of interest for
a Provisional Sergeant position posted by Delehanty. Id. ¶¶ 27, 29. Despite being given notice
that he could participate in the promotional examination, Romeo did not receive any study
materials and Defendants refused to postpone the examination. Id. ¶¶ 30, 31. Other officers
submitted letters of interest in the Provisional Sergeant position and Romeo alleges that he had the
most seniority, background, training, and experience of the officers who submitted letters of
interest. Id. ¶ 32. Ultimately, Romeo was not offered the Provisional Sergeant position. Id. ¶ 33.
Romeo also alleges that he was informed that he was not eligible to take a promotional examination
for a Permanent Lieutenant position. Id. ¶ 36.
Romeo contends that Defendants have willfully violated the FMLA and interfered with his
promotional opportunities because, during his tenure as the local union president, he “was a strong
advocate for equal rights for female Police Officers” and “aided, counseled and assisted” female
Winthrop Police Officers, Nancy Dalrymple (“Dalrymple”) and Judy Racow (“Racow”), “in
pursuing successful sex discrimination complaints at the Commission Against Discrimination,
Equal Employment Opportunity Commission, Massachusetts Superior Court, Massachusetts
Appeals Court, and U.S. District Court of Massachusetts.” Id. ¶ 11; see id. ¶¶ 41, 43. 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 4 of 18

5 
IV. Procedural History 
Romeo instituted this action on April 15, 2022, D. 1, and later amended his complaint, D.
22. Defendants moved to dismiss only Counts I–III. D. 23. 
V. Discussion 
A. Count I (Section 1983 claim) 
In Count I of Romeo’s second amended complaint, he alleges that Defendants violated 42
U.S.C. § 1983 by discriminating against him. D. 22 ¶¶ 40–41. 
1. Section 1983 Claim Against the Town 
A municipality is not liable under 42 U.S.C. § 1983 solely because it employs a tortfeasor.
Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 691 (1978). Instead, to prevail
in a § 1983 action against a municipality, plaintiffs must prove that the violation of their rights
occurred because of a municipality’s policy or custom. Baez v. Town of Brookline, Mass.
Brookline Police, 44 F.4th 79, 82 (1st Cir. 2022) (citing Monell, 436 U.S. at 694). Policies and
customs can be both official or unofficial, so they “include[] the decisions of a government’s
lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to
practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citing cases).
Furthermore, under either scenario, the policy or custom “must have been the cause of and the
moving force behind the deprivation.” Miller v. Kennebec Cnty., 219 F.3d 8, 12 (1st Cir. 2000)
(citation and internal quotation marks omitted). Accordingly, “there are three elements to a § 1983
claim against a municipality: (1) a violation of the constitution or federal law; (2) a custom or
policy of the municipality; and (3) causation between the custom or policy and the constitutional
deprivation.” Off. of the Pub. Guardian v. Elliot Hosp., No. 21-cv-705-LM, 2022 WL 4104502,
at *3 (D.N.H. Sept. 8, 2022). 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 5 of 18

6
Here, there is no plausible allegation that the Town has a formal or express policy
instructing officials to retaliate against officers who advocate for the equal rights of female police
officers. Romeo contends, however, that he can establish an unlawful policy or custom in the three
following ways: (1) a person with final policymaking authority caused the deprivation; (2) failure
to train or supervise; and (3) the existence of a custom of tolerance or acquiescence to federal
rights violations. D. 27 at 10. None prove availing.
a) Final Policymaking Authority
Only officials who have final policymaking authority can subject their municipal employer
to § 1983 liability through their actions. St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (citation
and internal quotation marks omitted). “Whether an official is a final policymaker is also a
question of law.” Walden v. City of Providence, 596 F.3d 38, 55 (1st Cir. 2010) (citing Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). “This determination requires a showing that
‘a deliberate choice to follow a course of action [was] made from among various alternatives by
the official or officials responsible for establishing final policy with respect to the subject matter
in question.’” Id. at 55–56 (alteration in original) (quoting Pembaur v. City of Cincinnati, 475
U.S. 469, 483 (1986)). To determine whether an official has final policymaking authority, courts
look to state and local law, “including ‘valid local ordinances and regulations,’ for descriptions of
the duties and obligations of putative policymakers in the relevant area at issue.” Id. at 56 (quoting
Praprotnik, 485 U.S. at 125).
In the case at bar, Romeo suggests, without pointing to any state or local authority, that the
Town Manager has final policy making authority regarding FMLA leave and promotional
opportunities. D. 22 ¶ 7 (describing Faison, the Town Manager, as “responsible for the day to day
operation of the Town . . . including oversight and supervision of all department heads, including 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 6 of 18

7
Police Chief . . . Delehanty”); D. 27 at 11. These conclusory statements are insufficient. See, e.g.,
Kelley v. Laforce, 288 F.3d 1, 10 (1st Cir. 2002) (affirming district court’s ruling that the alleged
constitutional violation was not caused by a municipal policy or custom where “appellants here
have not offered any support for their allegation that Chief Darrin has such final policy-making
authority under Massachusetts law”); Amatucci v. Young, No. 18-cv-1227-SM, 2021 WL
4477791, at *2 (D.N.H. Sept. 30, 2021) (dismissing Monell claim where the plaintiff “stated,
without authority, that the title of ‘Chief Deputy’ suggests final policymaking authority within the
Sheriff’s Department” and “otherwise only made unsupported conclusory statements concerning
Chief Deputy Young’s policymaking authority”).
Even assuming, arguendo , that Delehanty and Faison are final policymakers, that
allegation is insufficient. “A [c]ity is liable under Monell for the acts of a final policymaker only
if those acts constitute deliberate indifference.” Saldivar v. Racine, 818 F.3d 14, 20 (1st Cir. 2016)
(citing cases). “Deliberate indifference is a stringent standard of fault, requiring proof that a
municipal actor disregarded a known or obvious consequence of his action.” Baez, 44 F.4th at 83
(quoting Connick, 563 U.S. at 61) (internal quotation marks omitted). Such indifference can be
inferred “if a municipality receives repeated complaints of civil rights violations . . . followed by
no meaningful attempt on the part of the municipality to investigate or to forestall further
incidents.” Id. (citations and internal quotation marks omitted). Here, the complaint lacks any
allegations about similar civil rights violations. Even as Romeo contends that the cases of the
female police officers he supported in their discrimination claims “show that the Municipality
ratified the illegal and unconstitutional acts they perpetrated,” D. 27 at 11, he has not proffered
how those claims were similar to his or not or how they are part of a pattern of that plausibly
constitutes deliberate indifference. 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 7 of 18

8
b) Failure to Train or Supervise
This same reasoning undercuts Romeo’s failure to train or supervise claim. “A
municipality is only liable for failure to train or supervise under § 1983 ‘where the failure to train
amounts to deliberate indifference to the rights of persons with whom’ the municipal agents come
into contact.” Hewes v. Pangburn, No. 1:21-cv-00125-JDL, 2022 WL 823924, at *6 (D. Me. Mar.
18, 2022) (quoting DiRico v. City of Quincy, 404 F.3d 464, 468 (1st Cir. 2005)). As Romeo has
not demonstrated deliberate indifference above, he also fails here. More fundamentally, the second
amended complaint is devoid of any facts relating to a failure to adequately train or supervise. Id.
at *7 (dismissing § 1983 claim against municipality premised upon a failure to train or supervise
where “the amended complaint does not allege facts indicating that the Department failed to
adequately train its employees”).
c) Custom of Tolerance or Acquiescence of Federal Rights Violations
Romeo cites Sixth Circuit caselaw for the proposition that a § 1983 plaintiff can
demonstrate a municipality’s illegal policy or custom by looking to “the existence of a custom of
tolerance or acquiescence of federal rights violations.” D. 27 at 10 (quoting Jackson v. City of
Cleveland, 925 F.3d 793, 828 (6th Cir. 2019)). Romeo’s claim fails because, even under Sixth
Circuit caselaw that he cites, “a custom-of-tolerance claim requires a showing that there was a
pattern of inadequately investigating similar claims.” Burgess v. Fischer, 735 F.3d 462, 478 (6th
Cir. 2013) (citing cases). As explained above, Romeo has not alleged similar claims within the
Winthrop Police Department.
For at least these reasons, the Court dismisses Count I as to the Town. 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 8 of 18

9 
2. Section 1983 Claim Against Defendants in Their Official Capacities 
Romeo also asserts Count I against Delehanty and Faison in their official capacities. D. 22
¶¶ 1, 41. A lawsuit against a municipal officer in their official capacity is a suit against the
municipality itself, see, e.g., Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citation omitted);
Surprenant v. Rivas, 424 F.3d 5, 19 (1st Cir. 2005) (citing cases), so this claim fails for the same
reasons. 
3. Section 1983 Claim Against Defendants in Their Individual Capacities 
Romeo also asserts Count I against Delehanty and Faison in their individual capacities. D.
22 ¶¶ 1, 41. To prevail on a § 1983 claim, a plaintiff must show that (1) the alleged conduct was
committed under color of state law, and (2) the conduct deprived the plaintiff of rights secured by
the Constitution or federal law. Collins v. Nuzzo, 244 F.3d 246, 250 (1st Cir. 2001) (citation
omitted). There is no real dispute that Delehanty and Faison acted under of color state law.
Defendants argue in their opposition that Romeo has not plead facts showing that Delehanty and
Faison had any “personal involvement” with the alleged violations of federal law. D. 24 at 9.
Throughout second amended complaint, however, Romeo alleges conduct that Delehanty and
Faison were personally involved with, including, among other things, the deduction of accrued
vacation hours, the denial and review of his grievances, and the refusal to award Time Due. D. 22
¶¶ 10–38.
As to the second element, Romeo alleges that Defendants “abused their power and
authority and acted in concert by aiding and abetting discrimination and Retaliation [sic] on the
basis of Plaintiff’s longstanding and ongoing and continuing advocating [sic] for women Police
Offices for the Town of Winthrop for discrimination based upon sex.” D. 22 ¶ 41. He fails to
identify which federal statute Defendants violated in his description of Count I. Id. It is not 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 9 of 18

10
necessary for the Court to analyze every potential violation of federal law, because Romeo alleged
elsewhere in the second amended complaint retaliation in violation of Title VII of the Civil Rights
Act of 1964. Id. ¶¶ 1, 69–73. He, at least, has plausibly alleged retaliation in violation of Title
VII, which can serve as the predicate federal rights violation for § 1983 liability.
“Title VII’s anti-retaliation provision, 42 U.S.C. 2000e-3(a), states that it is unlawful for
an employer to discriminate against an employee because ‘he has opposed any practice made an
unlawful employment practice . . ., or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing.’” Decaire v. Mukasey, 530
F.3d 1, 19 (1st Cir. 2008) (quoting 42 U.S.C. § 2000e-3(a)). In the absence of direct evidence,
claims of retaliation under Title VII are evaluated using the McDonnell Douglas burden-shifting
framework. Bibiloni Del Valle v. Puerto Rico, 661 F. Supp. 2d 155, 168 (D.P.R. 2009); see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). “In order to establish a prima
facie case of retaliation, a plaintiff must establish three elements. First, the plaintiff must show
that he engaged in a protected activity. Second, the plaintiff must demonstrate he suffered a
materially adverse action, which caused him harm, either inside or outside of the workplace. The
impact of this harm must be sufficient to dissuade a reasonable worker from making or supporting
a charge of discrimination. Third, the plaintiff must show that the adverse action taken against
him was causally linked to his protected activity.” Mariani-Colon v. Dep’t of Homeland Sec., 511
F.3d 216, 223 (1st Cir. 2007) (internal citations omitted).
Romeo satisfies the first prong. Here, the second amended complaint alleges that Romeo
“counsel[ed]” officers Dalrymple and Racow “in pursuing legal successful claims for sex
discrimination” and that Defendants retaliated against him for assisting officers Dalrymple and
Racow. D. 22 ¶ 1. This amounts to protected activity under Title VII. Fantini v. Salem State 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 10 of 18

11
Coll., 557 F.3d 22, 32 (1st Cir. 2009) (including within activity protected by Title VII “ma[king]
a charge, testif[ying], assist[ing], or participat[ing] in any manner in an investigation, proceeding,
or hearing under Title VII” (citation and internal quotation marks omitted)).
For an employment action to be considered materially adverse, the action must have been
significant enough that it “might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.” Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(citation and internal quotation marks omitted). “This is an objective test and should be judged
from the perspective of a reasonable person in the plaintiff’s position, considering all the
circumstances. . . . Examples of adverse employment actions in the retaliation context include
termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material responsibilities, or
other indices that might be unique to a particular situation.” Morales-Vallellanes v. Potter, 605
F.3d 27, 36 (1st Cir. 2010) (internal citations and quotation marks omitted).
Romeo alleges Defendants retaliated against him in the following ways: (1) they
terminated his employment; (2) they deducted accrued vacation hours to offset hours owed and
did not give another opportunity to offset the hours owed; (3) they denied his Time Due requests;
(4) they denied his grievances; (5) they denied him promotions to Provisional Sergeant and
Provisional Lieutenant; and (6) they delayed notification of the approval of his intermittent FMLA
leave request. D. 22 ¶¶ 10–38. The First Circuit has concluded that several of these alleged
employment actions are materially adverse, see, e.g., Morales-Vallellanes, 605 F.3d at 36
(termination of employment); Rathbun v. Autozone, Inc., 361 F.3d 62, 74 (1st Cir. 2004) (failure
to promote), and, therefore, Romeo has plausibly pled that he suffered an adverse employment
action. 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 11 of 18

12
“To show causation in a Title VII retaliation case, a plaintiff-employee must establish that
his protected conduct was a ‘but-for’ cause of the adverse employment action.” Murray v.
Walmart Stores, Inc., No. 2:15-cv-00484-DBH, 2019 WL 6689900, at *11 (D. Me. Dec. 6, 2019)
(quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013)). Depending on the
particular circumstances of the case, a close temporal connection between the protected conduct
and the alleged retaliation can sufficiently establish causation. Calero-Cerezo v. U.S. Dep’t of
Just., 355 F.3d 6, 25 (1st Cir. 2004). Romeo’s 2015 termination occurred while Dalrymple’s
litigation, which Romeo allegedly assisted, was ongoing. See Dalrymple v. Winthrop, 97 Mass.
App. Ct. 547, 548–51 (2020) (detailing timeline and Dalrymple’s litigation history against the
Town). 1 Furthermore, after litigation required Romeo’s reinstatement in July 2018, he was not
given a Provisional Sergeant position a few months later, which he allegedly was the most qualified
for among the applicants. D. 22 ¶¶ 26–34; see Sánchez-Rodríguez v. AT&T Mobility P.R., Inc.,
673 F.3d 1, 15 (1st Cir. 2012) (finding a three-month gap between the plaintiff’s EEOC complaint
and his adverse employment action “close enough to suggest causation, especially given the
inferences we must draw in [the plaintiff’s] favor” and concluding that plaintiff had made out a
prima facie case of retaliation even as the court affirmed summary judgment for defendant on
plaintiff’s failure to show that non-discriminatory reason for discipline was pretext).
Given that Romeo’s prima facie burden “is not an onerous one,” Calero-Cerezo, 355 F.3d
at 26 (citation omitted), and that this Court is required to construe the facts in the light most
favorable to Romeo, he has sufficiently stated a claim of Title VII retaliation. See Decaire, 530
F.3d at 19 (deeming a plaintiff’s prima facie burden in a Title VII retaliation claim a “relatively
1 On a motion to dismiss, the Court may take judicial notice of public records, including
records from state court litigation. See Giragosian v. Ryan, 547 F.3d 59, 66 (1st Cir. 2008). 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 12 of 18

13
light burden” (citation and internal quotation marks omitted)). As such, he has also stated a claim
against Delehanty and Faison for § 1983 liability in their individual capacities. 
B. Count II (ADA claim) 
In Count II of Romeo’s second amended complaint, he alleges that Defendants retaliated
against him as a person with a disability in violation of the ADA. D. 22 ¶¶ 42–43. “A retaliation
claim under the ADA is analyzed under the familiar burden-shifting framework drawn from cases
arising under Title VII.” Kelley v. Corr. Med. Servs., 707 F.3d 108, 115 (1st Cir. 2013) (citing
cases). “To make out a prima facie retaliation claim, the plaintiff must show that: (1) she engaged
in protected conduct; (2) she experienced an adverse employment action; and (3) there was a causal
connection between the protected conduct and the adverse employment action.” Id. (citation and
internal quotation marks omitted). Romeo’s claim stumbles at each step.
In the second amended complaint, Romeo only makes one allegation which refers to a
disability: “On January 24, 2022 Plaintiff submitted a request for intermittent FMLA Leave to
Defendants for a chronic medical condition for Calendar year 2022.” D. 22 ¶ 38. He does not
proceed to name the chronic medical condition, its symptoms, or how it substantially limits one or
more of his major life activities. See Carroll v. Xerox Corp., 294 F.3d 231, 238 (1st Cir. 2002)
(explaining that the ADA’s “disability requirement can be satisfied by demonstrating a physical
or mental impairment that substantially limited one or more of [the plaintiff’s] major life activities”
(citing 42 U.S.C. § 12102(2)(A))). In his opposition to Defendants’ motion to dismiss, Romeo
explains that he suffers from celiac disease, D. 27 at 15.
Even assuming Romeo included this allegation about his disability in his second amended
complaint, his claim still fails. The second amended complaint does not allege that he engaged in
any conduct protected by the ADA, such as requesting an accommodation, Freadman v. Metro. 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 13 of 18

14
Prop. & Cas. Ins. Co., 484 F.3d 91, 106 (1st Cir. 2007) (citation omitted), or complaining of
discrimination based upon disability, Valle-Arce v. P.R. Ports Auth., 651 F.3d 190, 198 (1st Cir.
2011). Rather, he submitted a request for intermittent FMLA leave. D. 22 ¶ 38. Romeo also fails
to explain how the eighty-one-day delay in adjudicating his intermittent FMLA leave request
would be considered materially adverse, especially where the request was ultimately granted. Id.
Finally, the second amended complaint does not include any facts that would suggest causation
between ADA-protected conduct and any adverse employment actions. Even as alleged, Romeo
posits that Defendants were motivated to retaliate against him because he “assisted Dalrymple and
Racow with successful legal claims against the Defendants,” see id. ¶ 43, not because of any
disability (i.e., celiac disease) or engaged in unnamed ADA-protected conduct.
Accordingly, the Court dismisses Count II of the second amended complaint. 
C. Count III (FMLA claim) 
In Count III of Romeo’s second amended complaint, he alleges that Defendants interfered
with the benefits to which he is entitled to under the FMLA. D. 22 ¶¶ 1, 44–46. To state a prima
facie interference claim, “an employee [must] show: (1) she was eligible for the FMLA’s
protections; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the
FMLA; (4) she gave her employer notice of her intention to take leave; and (5) her employer
denied her FMLA benefits to which she was entitled.” Carrero-Ojeda v. Autoridad De Energía
Eléctrica, 755 F.3d 711, 722 n.8 (1st Cir. 2014) (citing cases). A plaintiff must also demonstrate
that the denial of FMLA benefits resulted in prejudice. Lopera v. Compass Grp. USA, Inc., 578
F. Supp. 3d 130, 135 (D. Mass. 2021) (citation omitted); see Tucker v. Town of Scarborough, No.
2:19-cv-00213-GZS, 2020 WL 3271936, at *5 (D. Me. June 17, 2020) (citing Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81, 90 (2002)) (same). 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 14 of 18

15
Defendants seem to suggest that Romeo’s FMLA claim must fail because each time he
requested FMLA leave, it was granted. D. 24 at 14. The FMLA, however, protects against more
than just outright denials of leave. See, e.g., 29 C.F.R. § 825.220(b) (including “not only refusing
to authorize FMLA leave, but discouraging an employee from using such leave” as interference
with an employee’s FMLA rights). Indeed, in the second amended complaint, Romeo alleges other
violations of his rights under the FMLA. Specifically, he contends Defendants violated the FMLA
in the following ways: (1) Defendants deducted nineteen hours of accrued vacation time to offset
hours owed and did not provide him with “additional time and a fair and reasonable opportunity
to offset hours owed;” (2) Defendants refused to award him Time Due; and (3) Defendants delayed
eighty-one days in adjudicating his intermittent FMLA leave request. D. 22 ¶¶ 15–25, 38. 
1. Deduction of Accrued Vacation Time 
Romeo’s FMLA interference claim based upon Defendants’ alleged refusal to afford him
an additional opportunity to make up the hours owed warrants dismissal. Even assuming the
FMLA requires employers to give their employees on FMLA leave additional opportunities to
make up hours owed, Romeo cannot demonstrate prejudice. The FMLA allows an employer to
“require the employee, to substitute any of the accrued paid vacation leave, personal leave, or
family leave of the employee . . . for any part of the 12-week period of such leave.” 29 U.S.C. §
2612(d)(2)(A). This means that even if Defendants granted Romeo further opportunities to make
up the hours owed and, therefore, keep his nineteen hours of accrued vacation time, Defendants
would have still been within their rights to count those hours as FMLA leave. See, e.g., Twillie v.
Erie Sch. Dist., 575 F. App’x 28, 33 (3d Cir. 2014) (stating that “[n]or did she assert that the
Defendants asked her to use accrued paid leave to cover some or all of the FMLA that she took,
which, as indicated, is authorized under the Act”); Mena-Valdez v. E.M. T-Shirts Distribs., Inc., 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 15 of 18

16
869 F. Supp. 2d 252, 262 (D.P.R. 2012) (stating that “an employer may require the employee, to
substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee
for any of the twelve-week leave provided under the FMLA” (citing 29 U.S.C. § 2612(d)(2)(A)).
Consequently, Romeo would have been in the same circumstances regardless of any further
opportunity to make up the hours. For, at least this reason, the Court dismisses Romeo’s FMLA
claim based upon this ground. 
2. Denial of Time Due 
This same reasoning defeats Romeo’s claim based upon the denial of Time Due.
According to Romeo, the Winthrop Police Department grants ten hours of Time Due for not using
or abusing sick time within three consecutive months, for a total of forty hours per year, and Romeo
was denied that benefit because he used intermittent FMLA leave. D. 22 ¶¶ 10, 17–25. In denying
Romeo’s Time Due, Defendants explained that he had been compensated with sick time during
his FMLA leave, so he did not attain the three months of not using sick time. Id. ¶ 19. Romeo
argues that this violated the FMLA because he “opted” to conserve “his unused and accrued Sick
Time as is permitted under the FMLA’s guidelines and regulations” and thus not use his accrued
sick time while on FMLA leave, thereby leaving him eligible for Time Due. Id. ¶ 21. The FMLA,
however, allows an employer to “require the employee, to substitute any of the accrued paid
vacation leave, personal leave, or medical or sick leave of the employee . . . for any part of the 12-
week period of such leave.” 29 U.S.C. § 2612(d)(2)(B). While Romeo might have preferred to
conserve his accrued sick time, Defendants were statutorily authorized to consider portions of his
FMLA leave as accrued sick time. See, e.g., Strickland v. Water Works & Sewer Bd., 239 F.3d
1199, 1204 (11th Cir. 2001) (stating that “[i]f an employer provides paid leave benefits to its
employees, the Act provides that ‘an eligible employee may elect, or an employer may require the 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 16 of 18

17
employee, to substitute any of the accrued paid vacation leave, personal leave, or medical or sick
leave of the employee for . . . any part of the 12-week period’ of FMLA leave” (quoting 29 U.S.C.
§ 2612(d)(2)(B)); Brotherhood of Maint. of Way Emps. v. CSX Transp., Inc., No. 03 C 9419, 2005
U.S. Dist. LEXIS 37950, at *4 (N.D. Ill. Dec. 28, 2005) (stating that “[t]he FMLA unequivocally
permits the substitution of paid vacation, personal, or sick leave for FMLA leave”); Watkins v. J
& S Oil Co., 977 F. Supp. 520, 523 n.1 (D. Me. 1997) (stating that the FMLA “expressly permits
an employer to ‘require the employee[] to substitute any of the accrued paid vacation leave,
personal leave, or medical or sick leave of the employee for leave provided . . . for any part of the
12-week period’” (alteration in original) (quoting 29 U.S.C. § 2612(d)(2)(B)). Accordingly,
Romeo’s FMLA claim based upon this basis is dismissed. 2 
3. Eighty-One-Day Delay 
On January 24, 2022, Romeo submitted a request for intermittent FMLA leave to
Defendants, but it was approved after pending for eighty-one days. D. 22 ¶ 38. He has sufficiently
plead a technical violation of his rights under the FMLA, because regulation requires employers
to notify their employees of their eligibility to take FMLA leave after five business days. 29 C.F.R.
§ 825.300(b)(1); see Bellone v. Southwick-Tolland Reg’l Sch. Dist., 748 F.3d 418, 422 (1st Cir.
2014) (citing 29 C.F.R. § 825.300(b)(1)). Dismissal is, nevertheless, warranted because he has not
satisfied the prejudice element. The only prejudice Romeo alleges is that this delay caused him
emotional distress and substantial weight loss, D. 22 ¶¶ 38, 46, which he cannot recover damages
for under the FMLA as a matter of law, see, e.g., Pagan-Colon v. Walgreens of San Patricio, Inc.,
697 F.3d 1, 16 (1st Cir. 2012) (explaining that “a plaintiff may not recover damages for emotional
2 As the Court grants dismissal on these grounds based upon alleged conduct in 2019, it
does not reach Defendants’ alternative argument that these parts of Romeo’s FMLA claim are
barred by the statute of limitations. D. 24 at 14–15. 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 17 of 18

18
distress under the FMLA” (citing Nev. Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721, 739–40
(2003)); Favreau v. Liberty Mut., Inc., 451 F. Supp. 3d 150, 168–69 (D. Mass. 2020) (dismissing
claim for lack of sufficient notice because the plaintiff only alleged that “the lack of notice that her
FMLA leave was approved prejudiced her because it caused her distress” and “it is not enough,
for a showing of prejudice, to allege fear of not being able to leave or come back to work” (citation
omitted)); Szabo v. Trustees of Bos. Univ., No. 96-cv-10806-GAO, 1998 WL 151272, at *6 (D.
Mass. Mar. 18, 1998) (concluding that even if the plaintiff "can show that she suffered some
emotional distress and worry at the uncertainty of not knowing what her job status would be," that
"[l]oss of a sense of job security or the accompanying mental distress" is not an injury protected
under the FMLA”). Accordingly, Defendants’ motion to dismiss Romeo’s FMLA interference
claim based upon their alleged eighty-one-day delay is allowed. 
VI. Conclusion 
For the foregoing reasons, the Court ALLOWS Defendant’s partial motion to dismiss, D.
23, as to Count I, but only as to the claims against the Town, and Delehanty and Faison in their
official capacities; Count II; and Count III. The Court otherwise DENIES Defendants’ partial
motion to dismiss, D. 23, so the case will proceed on the remainder of Count I, the § 1983 claim
against Delehanty and Faison in their individual capacities, and Counts IV–IX. 
So Ordered. 
/s/ Denise J. Casper
United States District Judge 
Case 1:22-cv-10573-DJC Document 29 Filed 05/23/23 Page 18 of 18