OC Seeks Dismissal In Discrimination Case
OCEAN CITY - Nearly a year after a long-time Ocean City police sergeant filed a discrimination civil suit against the town and its police department alleging he was bypassed for promotion to lieutenant when he was activated into service as a U.S. Coast Guard reserve officer after the Sept.11, 2001 terrorists attacks, Ocean City last week filed a motion to dismiss the case, claiming the plaintiff's lack of qualifications was the reason he was not promoted.
Last November, Sgt. William Bunting, an a resort police officer since 1984, filed a civil discrimination suit in U.S. District Court against his employer and the town of Ocean City seeking an immediate promotion to lieutenant and $350,000 in lost wages, compensation and other benefits because he was allegedly passed over because of his status as a reserve officer with the Coast Guard.
According to the complaint, Bunting was first denied promotion to lieutenant in 2004 when he returned to the OCPD after being called into active duty with the Coast Guard in 2002 in wake of the 9/11 terrorists attacks. In a second count of the complaint, Bunting alleges he was again bypassed for promotion in 2005 and again in 2007 because he took action against the department to enforce his rights under the Uniformed Services Employment and Re-employment Rights Act (USERRA) after his perceived initial slight in 2002.
'The defendants discriminated against the plaintiff by failing to consider him for promotion to OCPD lieutenant, despite being as qualified as the other candidates, because he took action to enforce his USERRA rights,' the complaint reads.
However, attorneys for the town and its police department last week filed a motion for summary judgment, essentially asking a federal court judge to dismiss the case, alleging Bunting was bypassed for promotion because he lacked the qualifications of the other candidates and that the perceived slight had nothing to do with his military service or his status as a Coast Guard reserve officer.
'The plaintiff cannot demonstrate or establish that his reserve membership in the uniformed services or his call to active duty was a substantial or motivating factor in his employer's decision not to appoint the plaintiff to the rank of lieutenant,' the motion for summary judgment reads. 'The defendant would not have appointed the plaintiff to the rank of lieutenant even if he had no service duties, and the decision not to appoint the plaintiff was objectively reasonable, non-arbitrary and non-discriminatory.'
Bunting, who started with the OCPD in 1984, maintained his status as a U.S. Coast Guard reserve officer during his employment with the department and his superiors were aware of his status as a reserve officer with the Coast Guard. In December 2002, Bunting was notified he was being called into active duty in support of Operations Noble Eagle and Enduring Freedom. According to the complaint, Bunting notified his superiors about his pending deployment at that time.
As ordered, Bunting reported for active duty with the Coast Guard in February 2003 and continued on full-time active duty until he was released in September 2004, at which time he applied for re-employment with Chief Bernadette DiPino.
However, while Bunting was away on active duty, a special order authorizing a promotion process for the rank of lieutenant was issued in March 2004. According to the complaint, a list of possible candidates for promotion to lieutenant was sent to all OCPD captains in February 2004, requesting they rank the candidates' strengths and weaknesses. Despite being as qualified as the other candidates, Bunting's name was not included on the list, according to the complaint.
According to the motion for summary judgment filed by the town last week, DiPino rated the 11 candidates for potential promotion in order and Bunting was ranked 11th on her list. The complaint suggests Bunting's status as a reserve officer would not preclude him from promotion and, rather, would be considered a positive.'
'The chief's opinion of the qualifications and the reason for the plaintiff not being promoted has absolutely nothing to do with his military status,' the motion to dismiss the case reads. 'To the contrary, the chief believes military service is a plus for consideration.'
The motion filed last week acknowledges Bunting was away on active duty as a reserve officer, but continued to deny his military status had anything to do with the pass over for promotion.
'Other than such bald allegations, the plaintiff does not allege any facts that would even remotely suggest that the plaintiff's military status was a substantial or motivating factor in any denial of promotion to an appointed position,' the motion reads. 'It is true he was not considered for the appointment while he was on active duty, however, he was offered the opportunity to apply for the appointment within five months from the date of his return to full-time employment. Of the eleven candidates, the plaintiff was rated the least qualified by the Chief of Police and unacceptable by the Director of Human Resources.'