Orono Chief’s Age Discrimination Suit Headed to Trial

A Maine fire chief who was terminated in 2012 is one step closer to his day in court.

Orono Fire Chief Norman “Buddy” Webb was fired on June 14, 2012 by a new town manager, Sophia Wilson. Wilson claimed the termination was due to Chief Webb’s poor job performance. At the time Chief Webb was 61 and experiencing problems with his knees.

Chief Webb filed suit alleging age and disability discrimination as well as retaliation for having filed a complaint with the Maine Human Rights Commission. The town moved to dismiss the suit prompting a ruling last week by U.S. Magistrate Judge John C. Nivison.

In the ruling, Magistrate Nivison concluded that Chief Webb had made a prima facia showing of age discrimination and retaliation sufficient to get to a jury. He granted the town’s motion for summary judgment on the remaining count of disability discrimination.

Among the key findings in the decision:

• Plaintiff asserts three claims, based on violations of the Maine Human Rights Act and the Age Discrimination in Employment Act: age discrimination (Count I), disability discrimination (Count II), and retaliation (Count III).
• Defendant argues that the record evidence does not and cannot support Plaintiff’s claims.
• To prove wrongful termination based on age, Plaintiff must show that age was the “determinative factor” in Defendant’s termination decision; that but for his age, he would not have been fired.
• Defendant argues that Plaintiff has not established a prima facie case because Plaintiff has not proved that he performed his job satisfactorily. The prima facie analysis, however, does not require an assessment of the relative merits of the parties’ arguments. Instead, the analysis contemplates a basic inquiry as to whether Plaintiff has satisfied the minimal elements of an age discrimination claim
• Plaintiff has presented evidence that in the context of summary judgment is sufficient to support the conclusion that Defendant’s stated reasons for the termination of Plaintiff’s employment were a pretext for age discrimination.
• Whether Defendant terminated Plaintiff’s employment for lawful reasons, or whether the termination constitutes unlawful age discrimination is an issue for the fact finder’s consideration.
• To establish a prima facie case for disability discrimination, Plaintiff must demonstrate that he (1) was disabled within the meaning of the Americans with Disabilities Act or the MHRA; (2) was qualified to perform the essential functions of his job with or without a reasonable accommodation; and (3) was discharged in whole or in part because of his disability.
• Although Plaintiff has presented evidence to support his claim that he is disabled due to his knee condition, and that he was qualified to perform the essential functions of the job with or without a reasonable accommodation, the evidence to support his contention that he was discharged in whole or part because of his disability is lacking.
• Plaintiff has presented evidence (1) that he engaged in a protected activity (i.e., filing of a discrimination complaint), (2) that he was subsequently terminated from his employment, and (3) that his employment was terminated the day after he filed his discrimination complaint.
• A close temporal relationship between the protected activity and the alleged adverse conduct will satisfy the causation element of the prima facie burden
• Plaintiff has presented sufficient evidence to support his contention that the stated reasons are pretext for Defendant’s unlawful retaliation. Whether Defendant terminated Plaintiff’s employment for lawful reasons or as the result of Plaintiff’s filing of an administrative discrimination complaint is thus an issue for the fact finder.

Among the other interesting things Magistrate Nivison pointed out in his decision:

• The prior town manager had given Plaintiff positive evaluations, and Plaintiff had never received a negative evaluation as fire chief in 5 – 6 years.
• Plaintiff’s attendance was outstanding and under his leadership, the Fire Department was typically under budget.
• Beginning in January 2012, seven of Defendant’s department heads had either resigned from their employment or had their employment terminated.
• The age of the work force is a factor in the way health insurance rates for Defendant are determined.
• Defendant’s experience rating became a factor in health insurance rates as of January 2012 when it reached 60 employees.
• Annie Brown, Defendant’s treasurer/tax collector and a 37-year employee, and Ms. Wilson discussed the Town’s health insurance rates and reviewed the quarterly printout of claims from MMA, but never discussed taking any measures to reduce the rates.
• Wilson hired a finance director, Matt Currier, who was then approximately 26 years old. Ms. Wilson also designated Mr. Currier as Ms. Brown’s supervisor.
• Previously, Ms. Brown had never had a supervisor other than the assistant Town Manager. Robert St. Louis, who was in his mid-40s, replaced Plaintiff as fire chief.

Magistrate Nivison also pointed out another often misunderstood aspect of retaliation claims, what I call The Retaliation Trap. “Liability for retaliation may be established even if the record would not support a claim of discrimination.” In other words, if someone files a discrimination complaint and they are then retaliated against – even if the discrimination claim cannot be substantiated – there still can be liability for retaliation. For more on the Retaliation Trap see my Fire Law Column in Firehouse Magazine, August, 2014 on The Retaliation Trap.

Here is a copy of the ruling: Webb v Orono Ruling