EagleTribune.com, North Andover, MA

October 26, 2012

City wants D'Agostino firing case thrown out

By Jill Harmacinski jharmacinski@eagletribune.com
The Eagle-Tribune

---- — LAWRENCE — When Richard D’Agostino returned to City Hall last spring, hoping to work again as an assistant city attorney, officials “reminded” him they “settled his case” and he “could not return to work,” according to court papers filed last week by the city.

D’Agostino “then voluntarily walked out of the building while discussing the settlement,” according to paperwork filed on Oct. 18 by attorney William DiAdamo, who is representing the city in this case.

D’Agostino filed a wrongful termination and breach of contract lawsuit, asking for his job back along with $300,000 in damages he said he’s owed from the city of Lawrence.

But the city’s version of events differs from what D’Agostino, 57, said happened when he came back to work on April 25. The Salem, N.H. man said he was fired after he showed up for work with a doctor’s note after 16 months on medical leave. After Mayor William Lantigua spotted him, D’Agostino said he was then escorted out of City Hall and later received an $85,000 lump sum check from the city.

DiAdamo acknowledged that Lantigua saw D’Agostino arrive at City Hall that day. However, the city “denies that (D’Agostino) was instructed to leave and escorted out of the building,” DiAdamo wrote. D’Agostino voluntarily left City Hall and received his $85,000 payment that day, he wrote.

The papers do not say D’Agostino was fired but that he “was reminded that he settled his case, and could not return to work,” DiAdamo wrote.

The city is now asking the court to dismiss D’Agostino’s case and make the former city attorney pay the costs of the defense, a request a Superior Court judge will rule on at a later date.

D’Agostino also wanted the city barred from filling his vacant post until his lawsuit is resolved. But on Oct. 9, Judge Timothy Feeley denied a request for preliminary injunction and also questioned how D’Agostino could prevail if the case goes to trial.

An assistant city attorney since 2005, D’Agostino, 57, earned $96,000 annually and had two years left on his contract when he was terminated, he said.

In the lawsuit, D’Agostino said from December 2010 until January 2011, D’Agostino’s city-related court trial and hearing schedule was overwhelming and stressful. He experienced chest pains and was taken to Lawrence General Hospital. He was later diagnosed with work-related anxiety, depression and post-traumatic stress disorder and went out on medical leave.

In January 2012, D’Agostino said his doctor told him he still couldn’t return to work for at least three months. But, he said the city stopped paying him, despite his attempts to use accumulated sick time and negotiate a lump sum workers’ compensation settlement with the city.

When he returned to work and was subsequently fired on April 25, city attorneys had him sign a “unlawful and therefore unenforceable” waiver which barred him from reemployment with the city of Lawrence, receiving any benefits due him and bringing any claims of wrongful termination or breach of contract against the city, according to the suit.

State law is quoted in the lawsuit which dictates that “no lump sump agreement” would bar employment with any employer, block pay or benefits due, discourage a workers’ compensation claim or “any claims of wrongful discharge or breach of contract.”

A copy of the allegedly illegal waiver is included with D’Agostino’s suit. It’s dated April 23 - two days before D’Agostino was fired.

D’Agostino’s lawyer Matthew Dwyer could not be reached for comment for this story.

D’Agostino was a former political ally, close friend and personal friend for Lantigua. D’Agostino also represented Lantigua in child custody disputes with his former wife, Maggie Fawcett Lantigua.

Follow staff reporter Jill Harmacinski on Twitter under the screenname EagleTribJill.