Terminated Indiana Firefighter Claims Age Discrimination

A 57-year old Indiana firefighter who claims he was fired after refusing to resign, has filed suit alleging violations of the Age Discrimination in Employment Act (ADEA) and the Older Worker Benefit Protection Act (OWBPA). Garry Harling filed suit in US District Court for the District of Indiana last week against the City of Westfield.

According to the complaint, Harling was the fire marshal for the Westfield Fire Department when in December, 2019, he was told he was being terminated. He was then told he would be allowed to resign provided he signed a release of all claims. As alleged in the complaint:

  • Defendant called Plaintiff into a meeting on or about December 5, 2019, wherein it informed him that his employment was being terminated.
  • Defendant did not provide any reason for the termination, but instead suggested that it would accept his resignation, if he agreed not to initiate or participate in any civil action against the Westfield Fire Department, City of Westfield – including any application for unemployment benefits.
  • Such a request is unlawful.
  • Furthermore, Defendant violated the Older Worker Benefit Protection Act by failing to provide Plaintiff 21 days to consider the agreement, 7 days to revoke it or even suggest that he have an attorney review the unlawful agreement.
  • Instead, when Plaintiff questioned the agreement, Defendant threatened Plaintiff that if he did not sign it, it will draft a termination letter and post it “for all the world to see” and give him a negative reference. Plaintiff refused to sign the agreement.
  • His employment was terminated effective December 6, 2019.

The Older Worker Benefit Protection Act is a little-known amendment to the ADEA enacted in 1990 that requires that employees 40 and over who are asked to waive their rights under the ADEA be given 21-days to consider the offer, and seven days after signing the agreement to revoke it. The request to waive rights under the ADEA must be made in writing and specifically reference the act to be valid. See 29 U.S. Code § 626 (f).

Harling had 29 years of service at the time of his termination, and needed two to three more years for his pension to vest. The suit asks the court to order his reinstatement, plus award him backpay and damages.

Here is a copy of the complaint.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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