Split Decision Ends Lawsuit Alleging Discrimination

OCEAN CITY — A federal discrimination suit filed in 2008 by an Ocean City Police Department (OCPD) sergeant, who alleged he was passed over for promotion to lieutenant when he was pressed into active military service with the Coast Guard, has ended in a “stalemate”.

In November 2008, OCPD Sgt. William Bunting filed a civil suit against the town of Ocean City and its police department alleging he was bypassed 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 bypassed for promotion because of his military obligations.

In the complaint, Bunting alleged he was first denied promotion in 2004 when he was serving as a reserve officer in the Coast Guard. He also alleged he was bypassed 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.

In January 2009, Senior U.S. District Court Judge William Nickerson 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.

Bunting appealed the U.S. District Court’s decision to dismiss the promotion discrimination suit and the case has slogged through the appeal process for over 12 months. Last February, however, the U.S. Court of Appeals reversed the dismissal, affirming in part and vacating in part, the decision of the lower court, and the case was remanded for a new trial.

Last week, the case finally went to trial in U.S. District Court and the jury returned a mixed verdict that ended the case at an impasse, essentially siding with Bunting on some aspects and with the town of Ocean City on others.

“The jury verdict in this case is a bit of a head-scratcher,” said Bunting attorney Robin Cockey this week. “The jury found that Mr. Bunting carried his burden of proof that his protected activity under USERRA was a substantial motivating factor in him being passed over for the promotion, but the jury also found the town had carried its burden of proving he would have been passed over for promotion anyway.”

At the close of the case, the jury was asked a series of questions in the hopes of leading to a definitive outcome, but the jury’s responses were mixed. For example, the jury was asked “has the plaintiff proven by a preponderance of the evidence that his complaint about the lack of notice of a promotional process in 2004, either to the Mayor and Council of Ocean City or to the Department of Labor, made while the plaintiff was in the performance of a military or uniformed service obligation, became a motivating factor in the decision of Chief DiPino not to promote the plaintiff to rank of lieutenant when he applied in 2005?”

The jury answered yes to that question, which appeared to favor Bunting. However, the jury also responded yes to the following question: “Has the defendant, Ocean City, proven by a preponderance of the evidence that the plaintiff would not have been promoted to the rank of lieutenant in 2005, regardless of the fact of his military service obligation and complaints to the Mayor or the Department of Labor?”

Cockey said this week the split verdict essentially brings an end to the case with nobody able to claim victory.

“Nobody is entirely happy, and nobody is entirely sad,” he said. “The word I use to best describe the situation is a stalemate. It’s one of those win-win cases, or maybe more accurately, lose-lose.”

While neither side claimed victory after the jury’s split decision, it appeared Bunting had the most at stake. In the complaint, Bunting was seeking an immediate promotion to lieutenant effective March 2004 along with damages, including lost wages, lost benefits, bonuses and vacation benefits totaling $350,000. Because there was not affirmative outcome, the plaintiff is not entitled to the promotion or the damages.

“The town can’t say they were vindicated, but Mr. Bunting can’t seek a back-dated promotion, nor can he get any money,” said Cockey. “It’s obviously a disappointing outcome for him.”

While the jury’s split verdict ended the case in a standoff of sorts, it appears unlikely there will be further action, according to Cockey.

“I don’t know that there will be any aftermath,” he said. “We’ll just have to stay tuned.”

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