By Donald Wittkowski
A former Ocean City lifeguard who lost his job after he narrowly failed a swimming test has been awarded nearly $128,000 by a Superior Court jury in his age-discrimination lawsuit against the municipality.
Paul McCracken claimed in his litigation that city officials “concocted a scheme” to get rid of older lifeguards by imposing new fitness requirements that made the running and swimming tests required of the Beach Patrol members more rigorous.
McCracken, of Linwood, who was 52 at the time, passed the running test but fell 3 seconds short of meeting the swimming requirements. He was fired in 2011 after failing the swim test, according to the suit.
In a statement Wednesday, city spokesman Doug Bergen denied McCracken’s allegations. Bergen said the Ocean City Beach Patrol has maintained “an impeccable safety record in more than a century of protecting the island’s residents and visitors.”
“For obvious reasons, the city maintains that it is not good practice to employ ocean lifeguards who are unable to pass the swimming test,” Bergen said. “The same standard applies to all returning guards who work on the beach.”
The suit alleged that McCracken and other older lifeguards were forced to retire or take a cut in their pension benefits after the city removed $53,000 from the Beach Patrol’s budget during a fiscal crisis in 2008. The budget cut intentionally targeted the veteran lifeguards, the ligation stated.
Lifeguards who “did not bow to the pension pressure” faced tougher running and swimming requirements so they could not qualify for their jobs, according to the suit.
However, Bergen said the city unified the fitness requirements so that all of the lifeguards were required to meet the same standards. Previously, the requirements were based on a “tiered” system in which lifeguards took different tests based on their rank.
McCracken’s suit, though, asserted that the city imposed the new standards under the “guise” that they were supposed to be a uniform test for all lifeguards.
“In fact, the test was a deliberate target of the older senior lifeguards with no other purpose than to facilitate their removal from the Beach Patrol or forcing them to retire,” the suit said.
Bergen said McCracken passed the new re-qualification test in 2009, but took off from the Beach Patrol the following year due to an off-season injury. Bergen confirmed that McCracken passed the running test, but failed the swimming requirements when he tried to return in 2011. McCracken then “refused” opportunities to re-take the swimming test, so he was not invited back to work for the Beach Patrol, Bergen stated.
McCracken’s lawsuit went to trial in Cape May County Superior Court in July. Siding in McCracken’s favor, the jury awarded him $127,998. The award was confirmed in an order signed by Superior Court Judge Noah Bronkesh on July 27.
The award was first reported on a blog run by John Paff, a government watchdog who is a member of the New Jersey Libertarian Party. The Superior Court released a copy of the judge’s order on Wednesday, the day after Paff posted the document on his blog.
In an interview Wednesday, McCracken’s attorneys said McCracken was pleased with the award and felt “vindicated” by the jury’s verdict.
“It came out during the trial that they wanted to get rid of older lifeguards and used the (fitness) policy to do that,” said Drake Bearden Jr., an attorney with the law firm Costello & Mains of Mount Laurel, N.J.
Kevin Costello, a partner with Costello & Mains, said it was clear McCracken was mistreated.
“This wasn’t a fair shake,” Costello said.
But Bergen said the city believes McCracken’s claims are frivolous and chose to pursue a jury trial rather than settling the case.
“With all due respect to the judicial process, we disagree with this verdict. The city is currently evaluating its options,” Bergen said.
City Council, at its meeting 6 p.m. Thursday at City Hall, is scheduled to convene in closed session to discuss the McCracken litigation, according to the agenda.