Ruling: OCPD Discriminated Against Elder Employee

OCEAN CITY – A federal employment commissioner ruled late last month the Ocean City Police Department (OCPD) did discriminate against a sergeant based on age when he was bypassed for a possible promotion to lieutenant in 2006.

OCPD Sgt. Dale C. Marshall filed a complaint against his employer with the federal U.S. Equal Employment Opportunity Commission (EEOC) following his apparent snub in 2006 for a promotion to lieutenant, alleging he was bypassed for younger officers because he was deemed at age 58 by Chief Bernadette DiPino as “eligible to retire” and “unacceptable” for promotion, according to the official determination of the EEOC released late last month.

The director of the EEOC’s Baltimore field office, Gerald S. Keil, ruled last month in his official and binding determination in the case Marshall and others bypassed for the same promotion for the alleged same reasons were discriminated against based on age and ordered the two parties to work toward an informal settlement on the issue that could include a promotion or monetary compensation or a combination of both.

The issue began in February 2006 when DiPino selected a 37-year-old sergeant, Scott Kirkpatrick, to attend specialized training at Northwestern University’s School of Police Staff and Command. According to Keil’s official determination in the case, DiPino advised Marshall and at least one other sergeant at least age 40 they were not considered for the training because they were “eligible to retire.” The record further reveals an OCPD captain, 53, was also eliminated from consideration for the training because he too was eligible to retire.

In the spring of 2006, the OCPD and DiPino conducted a selection process for promotion to lieutenant, and Marshall and the other sergeant bypassed for the training were deemed unacceptable for promotion because they were eligible for retirement. In May 2006, the OCPD promoted three sergeants, ages 37, 39 and 46, to acting lieutenant and in July 2006, the new acting lieutenants were promoted to permanent lieutenants.

Marshall challenged the promotions, filing a complaint with the federal EEOC earlier this year. On July 31, Keil issued his final determination on the merits of the case, ruling DiPino and the OCPD did indeed discriminate against Marshall and others based on age during the training opportunity and later the lieutenant promotions.

“Based on the foregoing, I find the respondent [the OCPD] has subjected the charging party [Marshall] and a class of individuals at least 40 years of age to disparate terms and conditions of employment by denying them the opportunity for training based on the respondent’s view that they were eligible to retire,” Keil’s findings read. “I also find that the charging party and a class of individuals at least age 40 were denied promotion to lieutenant in that the same decision maker was infected with discriminatory bias. This determination is final.”

Keil further ruled the two sides, with the help of the EEOC, now begin an informal conciliation process to resolve the alleged unlawful practices. The elements of conciliation include, but are not limited to, monetary compensation for Marshall and/or a promotion, according to Salisbury attorney Robin Cockey, who is representing Marshall in the case.

“We have been instructed by the EEOC to begin to broker some sort of out-of-court resolution to this issue,” he said this week. “That could include financial reimbursement or a reconsideration of promotion. All of those things are possibilities.”

If an amenable resolution cannot be worked out between the parties, the EEOC reserves the right to step in resolve the issue.

“If the respondent declines to discuss settlement, or when, for any other reason, an acceptable settlement to the office director is not obtained, the director will inform the parties and advise them of the court enforcement alternatives…,” court records said.

The scope of the possible court enforcement alternatives is far-reaching, according to Thiel’s final determination in the case. For example, the commission “can seek an amount inclusive of full back pay with interest, liquidated damages, benefits, reinstatement, instatement or front pay in lieu thereof and actual monetary costs incurred by the charging party and aggrieved individuals,” the report reads.

The EEOC’s ruling will require the OCPD and town officials to respond to the offer put forth in the conciliation process, and stepping in and enforcing a court-ordered settlement appears to be a measure of last resort, according to the document.

“The respondent will be requested to accept, reject or submit a counteroffer to the conciliation proposal,” the EEOC determination reads. “Again, the commission is postured to consider any reasonable offer during this period.”

For his part, Cockey said he is working closely with the town of Ocean City Human Resources Department to resolve the issue to each party’s satisfaction, making a court ordered enforcement unlikely.

Ocean City Human Resources Director Roger Weseman could not be reached for comment this week.

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