Friday, Jan 22–Judge Dismisses OCPD Discrimination Suit

OCEAN CITY – The Maryland Court of Special Appeals last week dismissed a discrimination suit filed in November 2008 by an Ocean City Police Department (OCPD) sergeant, who alleged he was by-passed for promotion to lieutenant when he was pressed into active service for the U.S. Coast Guard following the Sept. 11 terrorist attacks, essentially agreeing questions about his loyalty to the department and not his military service were legitimate reasons for the perceived slight.

In November 2008, OCPD Sgt. William Bunting filed a civil suit against the town of Ocean City and its police department alleging he was by-passed for promotion on two separate occasions because of his reserve status with the Coast Guard. Bunting, an OCPD officer since 1984, was called into active service as a reserve officer with the Coast Guard following the Sept. 11, 2001 terrorist attacks and alleged in his complaint he was by-passed for promotion because of his military obligations.

Bunting alleged in the complaint he was denied promotion first in 2004 when he was serving as a reserve officer in the Coast Guard. He alleged he was by-passed again in 2005 and 2007 because of action he took to enforce his rights under the Uniformed Services Employment and Re-employment Rights Act (USERRA) for his perceived initial slight.

However, Senior U.S. District Court Judge William Nickerson last Wednesday dismissed the case, agreeing Bunting was not by-passed for promotion because of his Coast Guard reserve officer status, but rather because of his overall lack of qualifications and lingering questions surrounding his loyalty to OCPD Chief Bernadette DiPino.

“Certainly, in a literal sense, the plaintiff’s active duty status caused him not to be considered for a promotion in 2004,” the opinion reads. “The plaintiff, however, provides little in support of his conclusion that had he been considered, he would have been promoted. It appears the plaintiff views his seniority relative to other applicants as one of the primary attributes in his favor.”

According to Nickerson’s opinion, Bunting’s active Coast Guard status had little to do with his being by-passed for promotion. The judge pointed out in his opinion Bunting was not promoted because of DiPino’s lingering doubts about his loyalty to the department and her command, which predated the promotion process and went back to the time she was promoted to chief ahead of several other candidates including the plaintiff’s brother.

“When the police chief who preceded Chief DiPino retired, Ocean City conducted a national search for his replacement,” the opinion reads. “Three members of the OCPD applied, including DiPino and the plaintiff’s brother, Victor Bunting. When DiPino was selected over Victor Bunting, the plaintiff was not happy with the decision and, in DiPino’s view, has openly demonstrated his disappointment with disloyalty to and disrespect for DiPino.”

According to the high court’s opinion, others in the OCPD were apparently also unhappy with DiPino’s selection. To illustrate this, the opinion relates the story of six members of the OCPD command staff the chief inherited when she took office filed suit against the town of Ocean City over a labor code provision that prevented OCPD personnel over the rank of lieutenant from participating in collective bargaining.

The Worcester County Circuit Court ruled in favor of the six plaintiffs, but the Maryland Court of Special Appeals reversed the decision, agreeing, “an employer is entitled to the undivided loyalty of its representatives,” which would be undermined if senior officers in the OCPD were permitted to engage in collective bargaining.

According to Nickerson’s opinion, it was William Bunting’s answers to a handful of specific questions during the interview process that doomed his promotion effort, not his status as a reserve officer with the Coast Guard.

“Chief DiPino states her evaluation of the plaintiff’s qualifications for the lieutenant’s position was based largely on his answers to two specific questions she posed in his interview,” the opinion reads. “Those answers, she opines, revealed a lack of loyalty on the part of the plaintiff to the department and her leadership.”

For example, during the course of the plaintiff’s interviews with DiPino, he was asked to name one person in the command staff he admired and why, to which he responded his brother Victor, because “he knows how to run the department.”

“DiPino heard this response as a slap at her management style and her own ability to run the department,” the opinion issued last Wednesday reads.

In the end, the appeals judge agreed the chief’s concerns about Bunting’s loyalty, and not his military service, were reason enough to deny his promotion to lieutenant.

“In light of the evidence in the record, the court finds that no reasonable jury would not conclude that DiPino would have made the same decision denying the plaintiff’s promotion regardless of his military status or USERRA complaint,” the opinion reads. “The plaintiff’s touting of the qualifications for the position that he deems most significant – his seniority, his commendation by one of the OCPD captains or his prior functioning as an acting lieutenant – does nothing to negate DiPino’s legitimate concern regarding the plaintiff’s fundamental loyalty to her command.”

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