The city will pay a former Ocean City Beach Patrol lieutenant $75,000 in a confidential settlement to end an age-discrimination lawsuit.
Edwin Yust, 70, of Ocean City, had alleged in the lawsuit that the city deliberately cut back his work days and changed physical requalification standards to force his retirement.
The agreement (click on second PDF icon at right to see full text) was executed by Mayor Jay Gillian on Jan. 3. It includes no admission of guilt on the part of the city or of Yust.
"(Yust) agrees to keep the terms, amount, and fact of this agreement completely confidential, other than to say, if asked, that all matters related to the service or employment of releasor have been resolved," according to the settlement agreement.
Such nondisclosure terms are common in lawsuit settlements, but New Jersey courts have consistently upheld the public’s right to know in cases that involve public entities and the expenditure of public money. Ocean City taxpayers will ultimately pay for the lawsuit through increased premiums to the Atlantic County Municipal Joint Insurance Fund (JIF), which insures the city. Ocean City Patch obtained the settlement agreement through an Open Public Records Act request.
Yust, who was 68 at the time he filed suit in May 2010 against the City of Ocean City, then-Fire Chief Joseph Foglio, Deputy Fire Chief Charles Bowman and Ocean City Beach Patrol Operations Director Thomas Mullineaux, worked 51 years on the Ocean City Beach Patrol between 1957 and 2008. (Click on first PDF icon above to see full text of the suit.)
In 2008, Yust (along with two other administrative members of the beach patrol older than 60) were given a start date for the summer season a few weeks later than usual, according to the lawsuit. Prior to 2008, Yust typically began his season on Memorial Day Weekend and worked through end of summer, averaging 85 to 90 days per year. But in 2008, he was asked to start on June 20.
He lost 20 days of potential compensation (as an hourly employee) and his pension benefit was reduced accordingly, the lawsuit states.
Beach patrol pensions are based on the greater of gross wages for the last summer worked or the average of gross wages for last three summers worked.
"The directive that Yust delay his starting date was a deliberate gambit by defendants to force Yust to retire because of his age by reducing his salary and putting the amount of his pension in jeopardy," Wildwood attorney Frank Corrado writes on behalf of Yust in the lawsuit.
Yust also was one of five applicants in 2008 for a senior lieutenant position. While Yust had 51 years experience, including 37 as an administrator (lieutenant, administrative lieutenant and assistant captain), the two successful applicants were 36 and 39 years old with a combined eight years experience as lieutenants, according to the lawsuit.
Yust filed a complaint in September 2008 with the Equal Employment Opportunity Commission (EEOC) alleging age discrimination, and the city responded in February 2009, the suit states. In March 2009, the Ocean City Beach Patrol changed its requalification standards for guards in administrative positions — they would have to complete a fully timed swim and run (200-meter swim in 3:30 and 800-meter run in 3:45) just as all nonadministrative personnel.
"The decision to abandon the tiered standards was a deliberate gambit undertaken to force Yust and other senior guards off the beach patrol because of their age, and was further undertaken in retaliation for Yust having filed an age discrimination complaint with the EEOC," Corrado writes in the lawsuit.
The lawsuit does not mention ethics complaints filed in January 2009 by former Ocean City Beach Patrol lifeguard Michael Hamilton alleging that some guards were allowed back onto the patrol without meeting requalification standards. Hamilton accepted a $50,000 settlement in August 2011 in a separate age-discrimination suit making similar allegations related to the 2008 OCBP decisions.
Yust was unable to meet requalification standards in 2009 and left the beach patrol.
In addition to monetary losses, Yust's lawsuit said he suffered injury to his reputation and sense of self. The suit sought compensatory and punitive damages, costs and fees.
The $75,000 settlement agreement requires Yust to dismiss claims in a separate complaint filed with the New Jersey Public Employment Relations Commission (PERC) related to the allegations in the lawsuit. It does not change his pension calculation.
The City of Ocean City settled another age-discrimination lawsuit in December 2008 — paying $450,000 to former Ocean City Beach Patrol Captain Oliver Muzslay.
City Council has met recently in sessions closed to the public to discuss several other lawsuits. Still pending are lawsuits from Jeffrey Moyer and Robert Petnick (alleging abuse by K-9 patrols), Oliver Muzslay (a separate suit seeking back payments on his pension), Monica Raab (alleging a violation of her constitutional rights after a confrontation with a police officer), John and Diane Myers (seeking permission to renovate and expand their home in the Beach and Dune Zone) and beachfront property owners (seeking damages because dunes have grown taller than stipulated in an easement agreement).