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Federal suit over pregnant corrections officer drives up Niagara legal fees

LOCKPORT – The U.S. Justice Department’s lawsuit against Niagara County over a job assignment for a pregnant corrections officer was the main factor in driving the county’s outside legal expenses for labor-related cases to a new record high in 2015.

The case, settled in December, accounted for nearly half of the $350,662 the county spent with the Buffalo law firm of Jaeckle Fleischmann & Mugel. In addition to that, the county spent $61,801 with another firm, Bond Schoeneck & King, on another federal gender discrimination case involving an assistant district attorney.

Incidentally, the two firms merged under the Bond Schoeneck name at the end of 2015.

In May 2013, the federal government sued the county over a 2007 incident involving corrections officer Carisa L. Boddecker. The county spent $44,967 on the case in 2013, $84,239 in 2014 and $158,089 in 2015.

That makes a grand total of $287,295 in legal expenses, plus the $94,000 settlement the county paid. The main Jaeckle Fleischmann attorneys were Melinda G. Disare, who charges $225 an hour, and Sharon A. Swift, who bills $195 an hour.

The county didn’t admit in the settlement papers that it did anything wrong in regard to Boddecker, although her attorney, Robert L. Boreanaz, proclaimed when the settlement was disclosed just before Christmas that the outcome was “a vindication.” Boreanaz’s law firm, Lipsitz Green Scime Cambria, pocketed $29,000 of the settlement.

The case began when Boddecker, who was pregnant and therefore supposed to be limited to light duty, was assigned to work as a cellblock guard because of what the Sheriff’s Office said was a shortage of available female officers.

Boddecker and her doctor protested the assignment, and the eventual outcome was that the county forced Boddecker to go on unpaid leave under the Family and Medical Leave Act.

She then complained to the U.S. Equal Employment Opportunity Commission that she was a victim of gender discrimination, because male officers recovering from injuries were allowed to continue on light duty in the control room at the jail, while she was ordered to either work in the cellblock or take unpaid leave.

The EEOC investigated the matter. Instead of simply giving Boddecker the right to sue the county over the case, the commission referred the matter to the Justice Department, which sued the county on Boddecker’s behalf. Facing mounting costs and an opponent with virtually unlimited resources, the county folded.

“Probably the biggest issue: it was getting pretty expensive,” County Attorney Claude A. Joerg said.

Federal cases seem to be the most expensive litigation. Take the case of Assistant District Attorney Elizabeth R. Donatello, who sued the county last February because of alleged mistreatment by District Attorney Michael J. Violante.

Donatello, who was a sex crime prosecutor, was threatened with dismissal after complaining that Violante was not treating her fairly in regard to scheduling and case assignments.

She alleged that a male colleague in the special victims unit, Assistant District Attorney Robert A. Zucco, was paid more than her, while being allowed to arrive late and leave early because he is a single father. Donatello, who is married but childless, makes about $25,000 less than Zucco, who has been with the county 12 years longer.

Donatello also accused Violante of making inappropriate remarks concerning the bodies of female prosecutors.

However, a 2014 Bond Schoeneck investigative report in the case file alleged that Donatello took more time off than any other prosecutor in two of the previous three years, and often initiated sexually oriented conversations in the office.

In response to that, Donatello’s attorney, Andrew P. Fleming, tried to get Bond Schoeneck thrown off the case because the report allegedly made the firm’s attorneys witnesses as well as litigators. In December, U.S. Magistrate Judge Hugh B. Scott denied the motion.

Invoices from Bond Schoeneck that provided the $61,801 tally said six attorneys have worked on the Donatello case, at rates ranging from $115 to $290 an hour. The case seems likely to drag on for a while, since Scott issued a scheduling order Feb. 10 giving the sides another year to complete the evidence-sharing process called discovery.

In June, a state judge allowed Donatello to file a notice of claim that could lead to a second lawsuit, this one over alleged retaliation by Violante in transferring Donatello in 2014 from sex crimes to welfare fraud cases. That move sent her to an office in Niagara Falls, away from all the other prosecutors.

There’s another federal case involving Donatello, but in that one, the county is defending her.

A man she convicted of child sexual abuse, Franklin D. Schafer of Porter, accuses her of violating his constitutional rights. In 2009, Schafer was sentenced to 20 years to life in prison.

His appeals over the conviction were rejected in state courts.

The federal court website shows nothing has happened in Schafer’s civil rights lawsuit since shortly after it was filed in 2012.

The county’s current attorney on the case, Elizabeth M. Bergen of Gibson, McAskill & Crosby, filed a dismissal motion almost four years ago, which has not yet been ruled upon by U.S. District Judge Richard J. Arcara.

Another slow-moving federal case is that filed in 2014 by the leaders of the Deputy Sheriffs Association, Jeffrey J. Newman and Richard H. Werth Jr., over the county’s policy on use of compensatory time by jail guards and dispatchers. Jaeckle Fleischmann billed the county $38,608 on that case last year, bringing the two-year tab to $77,085.

The case contests limits to comp time the county imposes by capping the number of workers allowed off on any given day, caps that the plaintiffs claim violate the federal Fair Labor Standards Act.