OC Seeks Dismissal In Age Discrimination Case

OCEAN CITY – Ocean City, through its attorney, last week filed a motion to dismiss a lawsuit filed in September by a federal watchdog agency against the town of Ocean City citing alleged discrimination against certain Ocean City Police Department officers based on age when it came to training and promotions.

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.

In its formal answer to the complaint filed last Wednesday, the town of Ocean City, through its attorney, essentially stated most of the complaints asserted in the suit were not valid for a variety of reasons and requested the action against the resort and its police department be dismissed.

“Defendant denies that suit is proper or that defendant has engaged in any of the unlawful conduct alleged,” the response reads. “At all times, defendant acted in good faith and has not violated any rights that any of the individuals represented by the plaintiff may have under federal, state or local laws, regulations or guidelines.”

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.

However, the official response filed by the town of Ocean City last week asserts factors other than age were the reasons Marshall, Braeuninger and other officers were bypassed for specific promotions or training opportunities.

“Some of all of the plaintiff’s claims are not actionable because some or all of the individuals the plaintiff represents were unqualified for the employment opportunities cited in the complaint on grounds other than age,” the response reads. “Some of all of the plaintiff’s claims are not actionable because the challenged employment decisions of the defendant were justified by legitimate, non-discriminatory and non-pretextual business reasons and were based on reasonable factors having nothing to do with the ages of Sgt. Braeuninger, Sgt. Marshall, or any other individuals alleged to be similarly situated.”

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.

Keil’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. There appeared to be a willingness on both sides to reach a solution, but when the conciliation process broke down, the EEOC exercised its right to file suit against the defendants.

However, citing several factors in the case including the assertion the officers were not discriminated based on age, but rather on other merits, the town last week requested the discrimination suit be rejected.

“The defendant respectfully requests that plaintiff EEOC’s complaint be dismissed, with costs and fees awarded to the defendant, and such other relief as this court deems appropriate,” the response reads.