OCPD Discrimination Suit Resolved

OCEAN CITY- The lawsuit filed against the town of Ocean City last September by a federal watchdog agency citing discrimination against certain Ocean City Police Department officers based on age when it came to training and promotions was resolved this week with a consent decree approved by all parties.

While the consent decree agreed upon by the town and the EEOC does not include an admission of guilt, hefty measures are levied against the town including thousands of dollars in back compensation to the allegedly wronged officers and hours of mandatory discrimination training for all members of the City Council, the City Manager, Police Chief Bernadette DiPino and her entire command staff as well as all non-command staff members of the department.

According to the consent decree issued in federal court on Wednesday, the agreement was reached in an effort to avoid a long and drawn out legal battle. A federal judge reviewed the proposed agreement and issued the consent decree after discovering it met the guidelines.

“The Commission and defendant desire to resolve this action without the time and expense of continued litigation, and they desire to enter a decree, which will resolve this action,” the consent decree reads. “The court has examined this decree and finds that it is reasonable and just and in accordance with the Federal Rules of Civil Procedure.”

The U.S. Equal Employment Opportunity Commission (EEOC) in September filed suit in U.S. District Court against the town of Ocean City alleging age discrimination against two active OCPD sergeants and an entire class of officers roughly the same age for allegedly bypassing them for certain training and promotions. The suit was filed after an attempt at conciliation between the EEOC and the parties involved reached a stalemate.

OCPD Sgt. Dale C. Marshall filed a complaint against his employer with the federal 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 at the end of July.

In August, Gerald S. Keil, director of the EEOC’s field office in Baltimore, ruled in his official and binding determination in the case Marshall and others, namely Sgt. Kathy Braeuninger, were bypassed for the same promotion 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.

While the consent decree does not include an admission of guilt for the town of Ocean City or its police department, it does include rather onerous requirements for the defendants. For example, within 15 business days of the entry of the decree, the town shall pay a total of no more than $40,000 to the claimants, which amounts to lost wages. The total will be distributed by the EEOC to the claimants it identifies.

The decree also includes a provision for injunctive relief enjoining the defendant, it officers and all persons acting on their behalf from discriminating against applicants and employees on the basis of age. Perhaps even more stringent is the mandatory discrimination training required in the consent decree.

For example, within 120 days from date of entry of decree, all members of the defendant’s city council shall be required to attend a training program lasting at least two hours. The training shall cover the prevention of employment discrimination and compliance with federal anti-discrimination laws with a particular emphasis on age discrimination. For the duration of the decree, defendant shall provide the same training to all newly elected council members.

Also within 120 days, City Manager Dennis Dare, DiPino and all members of the OCPD’s command staff are required to attend a similar training program lasting at least four hours. All non-command staff members with the OCPD are required to attend a minimum of two hours of discrimination training under the consent decree, and all seasonal officers will receive instruction on age discrimination during daily roll call or other meetings. Finally, the police department shall post a notice in all places were notices to employees are customarily posted and within 15 days, DiPino will distribute a memorandum to all employees within the department emphasizing the department’s commitment to abide by all federal laws prohibiting discrimination.

Despite the many requirements, the consent decree issued this week emphasizes the agreement does not constitute an admission of guilt.

“The parties agree that neither this consent decree, nor any of the actions taken pursuant to this consent decree shall constitute or be construed as an admission of any wrongdoing of any kind by either party,” it reads. “This consent decree shall not be used as evidence in any proceeding other than one arising out of this consent decree.”

The consent decree brings a measure of closure to a case dating back to February 2006 when DiPino and the OCPD selected a 37-year-old sergeant to attend specialized training at Northwestern University’s School of Police Staff and Command. According to the EEOC’s official determination in the case, DiPino advised Marshall and at least one other sergeant at least age 40, presumably Braeuninger, 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

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.

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