City Council met in executive session recently to discuss another age-discrimination lawsuit from an Ocean City Beach Patrol lifeguard who lost his job after he failed a physical recertification test.
Paul McCracken, who was 52 in summer 2011 when he failed the swimming test for returning lifeguards, sued in June 2013. His lawsuit claims the city deliberately changed the requalification standards to force senior lifeguards to retire.
Ocean City paid Mike Hamilton $50,000 in 2011 and paid Edwin Yust $75,000 in 2013 to settle similar lawsuits. The city paid former OCBP Captain Oliver Muzslay $450,000 in 2008 in another age-discrimination suit.
Council met Oct. 22 to discuss the McCracken lawsuit in closed session — sometimes a signal that the governing body is considering a settlement agreement to pay what they consider a smaller sum than they might risk losing in legal fees for even a winning trial. The city admitted no guilt in any of the previous settlements.
But McCracken's attorney, Kevin Costello of Costello & Mains in Mount Laurel, said on Wednesday no settlement agreement has been reached to date.
McCracken's lawsuit — against the City of Ocean City, former Fire Chief Joseph Foglio, Deputy Fire Chief Charles Bowman and Beach Patrol Operations Director Tom Mullineaux — relates to actions taken by the beach patrol in 2008 and 2009, and a test he failed in 2011.
In 2009, the beach patrol eliminated a tiered system of swimming and running tests that did not require senior lifeguards to meet the same standards as younger guards. The new tests require all returning lifeguards to meet the same standards (200-meter swim in 3:30 and 800-meter run in 3:45).
After passing the new tests in 2009 and 2010, McCracken failed to make the required swim time in June 2011.
The lawsuit further alleges that then Fire Chief Joseph Foglio in 2008 took $53,000 from the beach patrol operations he supervised and transferred it to the Fire Department. The suit claims Foglio tried to cut beach patrol expenses by reducing the hours of senior lifeguards and forcing them to retire to protect their pensions (which are based on gross wages for the last year worked or the average of the last three years worked).
McCracken worked as a senior guard, a position that includes both administrative and regular lifeguarding duties.
The suit seeks compensatory and punitive damages, attorney's fees and restoration of full pension benefits.
