Insurer settles Waterbury's harassment claim against East Providence, city officials

Agrees to pay $575,000 to end two-year litigation

EastBayRI.com ·

EAST PROVIDENCE — In a document dated Nov. 29, 2017, the Rhode Island Interlocal Risk Management Trust, which includes East Providence among its insurance collaborative, entered into an agreement in the sum of $575,000 to settle a sexual harassment action initiated by Human Resources Director Kathleen Waterbury against the city and some of its past and present officials.

The settlement became formal once Ms. Waterbury’s counsel requested dismissal of the complaint, which was granted by Judge Richard T. Licht in Superior Court on Wednesday, Dec. 13. According to the terms of the agreement, the money was to be paid by the Trust to the law firm of Moses Afonso Ryan, which represented Ms. Waterbury in the proceedings. The firm then was to disperse the amount owed to her.

As of part of the agreement to end the near two-year litigation, Ms. Waterbury’s counsel needed to file an amended complaint against the City of East Providence, while dropping charges against named defendants East Providence Fire Chief Oscar Elmasian, former City Manager Paul Lemont and former City Manager Richard Kirby.

Those charges were dismissed “with prejudice,” meaning Ms. Waterbury agreed to never again being able to broach the complaints and that the men were, in legal terms at least, exonerated. The city, initially at least, will bear no cost of the settlement. The harassment allegations were verbal, not physical in nature.

The settlement was concluded against the wishes of the three defendants, each of whom through their counsel requested the case go towards trial.

“We were stunned by all of this. We objected to the settlement. We were not allowed to participate in any way. We had to fight just to get a look at the terms,” said Attorney Thomas McAndrew, who represents Chief Elmasian, in an interview Monday, Dec. 18, when he also noted all confidentiality associated with the action was nullified with the agreement, freeing him to discuss the case openly.

Chief Elmasian hired Mr. McAndrew to be his counsel. The Trust, however, did not recognize the move, instead providing the chief representation by Attorney William O’Gara. That matter, according to case related documents, is currently in arbitration.

“We wanted to have this case adjudicated,” Mr. McAndrew added.

Ms. Waterbury was represented in the action by Moses Afonso Ryan attorneys Michael “Tim” Eskey and Stephen Izzi.

“The settlement was a fair and satisfactory resolution for Ms. Waterbury of her claims,” Mr. Eskey said when reached for comment December 20. “Hopefully, the city and all involved will honor Ms. Waterbury’s courage in bringing the action by making positive changes benefitting the city, its residents and particularly its employees.”

Late in November, the Interlocal Trust and Ms. Waterbury concluded a monetary settlement for her complaints. As well, conditions of her employment with the city were also hashed out. Besides releasing the city and the accused of all claims, effective February 9, 2018, Ms. Waterbury will leave her position as HR director. In the meantime, she will continue to be paid a salary and will receive any other benefits/compensation due her per her contract.

As is customary in these kinds of cases, according to Mr. McAndrew, Ms. Waterbury’s counsel could receive upwards of one-third the settlement amount as compensation. It is left up to the firm whether any associated referral fees are paid subsequently.

In a July 19 deposition, Mark Ryan, a partner at Moses Afonso Ryan, said Ms. Waterbury was referred to his firm by city resident, lawyer and former elected official George Caruolo. Others deposed in the case were East Providence Police Chief Christopher Parella, City Information Technology Director Kelly Ahrens, East Providence Fire Department Battalion Chief Glenn Quick, EPFD Battalion Chief David Rave and EPFD Battalion Chief George Wyrostek, the latter now retired.

Mr. McAndrew called the process of the settlement “unbelievable,” adding he and counsel for the defendants continued, as of the agreement date, to seek discovery in the case and had more witnesses to depose. He also said counsel for the defendants were soon planning to seek a motion to “throw out a substantial portion” of Ms. Waterbury’s claims.

“I’ve never seen this in my 46 years of practicing law,” Mr. McAndrew continued. “This was highly, highly unusual.”

Ian Ridlon, general counsel and director of legal services for the Interlocal Trust, said, “No,” when asked December 19 if he would be willing to discuss the case. He added a second, “No,” when asked if the Trust had a comment on the settlement. Asked further if the Trust was planning on releasing any sort of statement about the Waterbury case, he added a third short, “No.”

According to best estimates, if the suit had continued and gone through a trial, the Trust’s obligations for all legal fees involved could have reached or surpassed $250,000. And though the city will not pay the settlement directly — it is shared in part by all members of the Interlocal Trust — it’s likely East Providence’s annual premium will rise when year-end adjustments are made.

Attorney Marc DeSisto was hired by the Trust to represent the city and Mr. Lemont. He was contacted for comment on December 19 and said he would need time to compile a statement, as of yet received. As recently as in a letter dated December 10, Mr. Lemont wrote to Mr. DeSisto telling him to oppose the settlement on his behalf. Mr. Lemont also wrote he was seeking future counsel with Mr. McAndrew.

Ms. Waterbury, an at-will employee, initiated her action against the city and the plaintiffs named back in January of 2016 first by filing a complaint with the Rhode Island Commission for Human Rights. It was later moved to State Superior Court then Federal District Court before coming back to Superior Court upon settlement.

Mr. Kirby, who was city manager at the time before being fired by the then-seated council in August of that same year, attempted to place Ms. Waterbury on administrative leave, but was rebuffed by the courts and an arbiter. She was paid in full when off the job and ultimately reinstated permanently to her position. Mr. Kirby was included in the complaint for alleged negligence of proper oversight or investigation into the matter.

Mr. Kirby is being represented by Attorney Max Wistow. Mr. Wistow declined comment on the case when reached December 21. He requested to be contacted again in the near future to discuss the matter.

As part of its response to her claims, the city hired attorney Vincent Ragosta to review the complaint on its behalf. Mr. Ragosta, who confirmed he was paid approximately $60,000 for his work, returned both a verbal and written report with an opinion the evidence of Ms. Waterbury’s allegations was insufficient and did not rise to the level of culpability to the city or the defendants.

Ms. Waterbury’s complaint alleged, by either Chief Elmasian or Mr. Lemont, her being referred to as female body part in a derogatory manner, being subjected to comments about the appearance of women, her being spoken to in a sexually suggestive way and being subjected to pornographic material on an electronics device among other things.

In an interview conducted on December 20, Mr. Ragosta, whose firm specializes in harassment claim investigations, explained he found some of the allegations in the Waterbury matter “were disputed and some were admissions of what was said, but not in a sexually discriminatory way, but more so in anger.”

Mr. Ragosta said it was his assessment Ms. Waterbury’s claims did not meet the legal sexual harassment standard of Rhode Island, which, he continued, must be “deemed severe and pervasive, not a stray comment or an inappropriate word, joke or statement.”

Mr. Ragosta added, “Certainly some of the words used in this instance were inappropriate, but in legal terms it’s different to say it’s an act of harassment or that the city is liable. The conduct of some involved was less than exemplary and it did not reflect well on those individuals. But in and of themselves, (Ms. Waterbury’s) claims did not rise to level of actionable harassment in my opinion.”

The defendants, obviously, agreed with that assessment and, in their view, considering the number of moving parts still involved in the case — motions, depositions, amended claims, etc. — were dismayed in its abrupt end.

“To the settle the case in this manner is inexplicable,” Mr. McAndrew said.

With the matter involving Ms. Waterbury specifically now done, none of the defendants nor their counsel, however, would comment on the record if they planned to take any action of their own for issues related to their past or present employ or their legal fees.

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