Agency Files Discrimination Suit Against OC

OCEAN CITY – A federal watchdog agency this week filed suit against the town of Ocean City citing discrimination against certain Ocean City Police Department officers based on age when it came to training and promotions after town officials rejected an offer to reconcile the dispute before heading to court.

The U.S. Equal Employment Opportunity Commission (EEOC) on Monday 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 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.

The town of Ocean City, the OCPD and the plaintiffs in the case were instructed by Keil to broker some sort of out-of-court resolution to the issue, which could have included financial reimbursement or reconsideration for promotion or both. Keil warned in his official findings if the parties could not come to an amenable solution, the EEOC would be forced to step in and impose its own solution to the issue.

The EEOC’s ruling required the town and the OCPD to respond to an offer put forth in the conciliation process. If the town and the OCPD did not respond to the conciliation process, the EEOC reserved the right to step in and enforce a court-ordered settlement, which seemed like a long shot at the time considering the opposing parties each expressed a willingness to come to the table, but when Ocean City rejected the offer to reach an amenable solution, the EEOC followed through with its threat of a lawsuit, which was filed on Monday.

Ocean City Town Solicitor Guy Ayres said the week the town and by association the OCPD continues to deny any discrimination based on age toward its officers when it came to promotions and training, which is why Ocean City rejected the proposal to reach an out-of-court settlement.

“They said they found we discriminated against Marshall and Braeuninger and made a demand of conciliation, which we rejected,” he said. “We continue to deny any discrimination in training programs and promotions.”

Ayres said the town fully cooperated with the EEOC during its investigation and questioned the agency’s process in determining its findings, which is, in part, why Ocean City rejected the attempt at an out-of-court conciliation. The town solicitor suggested the EEOC reached its conclusion in a vacuum without consulting with the town of Ocean City or its police department.

“The EEOC conducts an investigation and they basically dictate the terms of the settlement,” he said. “They contact us and ask us to respond, but they don’t consult with us. We sent them reams of paper on this, but they just form their own conclusions.”

The issue began in 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 Keil’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.

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.

Ayres this week pointed out the EEOC’s original report on Marshall’s case issued in July and the lawsuit filed against the town on Monday suggests the town discriminated against the officers in question because they were over 40, but the facts of the case show one of the three officers promoted to lieutenant in 2006 was age 46.

“To say we discriminated based on age is simply not true,” he said. “Of the three promotions, at least one was over the age of 40.”

With any hope of an out-of-court settlement exhausted, the lawsuit filed against the town of Ocean City on Monday seeks to grant a permanent injunction to stop the defendant from denying training or failing to promote any individuals based on age. The suit also seeks monetary damages in the form of appropriate back wages for the officers named in the suit and anyone else deemed to be affected by the town’s alleged discriminatory policies.