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Ocean City Faces Another Beach Patrol Lawsuit

Former Ocean City Beach Patrol lifeguard Paul McCracken sues for age discrimination.

Ocean City Beach Patrol rookie applicants face more rigorous testing than returning guards.
Ocean City Beach Patrol rookie applicants face more rigorous testing than returning guards.
City Council met in private Thursday (Dec. 12) to discuss another age-discrimination lawsuit filed by a former Ocean City Beach Patrol lifeguard.

In the past two years, Ocean City paid Mike Hamilton $50,000 and paid Edwin Yust $75,000 to settle lawsuits making similar allegations. The city paid former OCBP Captain Oliver Muzslay $450,000 in an earlier settlement related to his ouster in 2001.

Paul McCracken, of Linwood, who was 52 in summer 2011 when he failed the physical recertification test for returning lifeguards, sued in June 2013. His lawsuit claims the city deliberately changed the requalification standards to force senior lifeguards to retire.

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).

In January 2009, Hamilton had filed ethics complaints against beach patrol officials that alleged, in part, that some guards were allowed back onto the patrol without meeting the requalification standards. 

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 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).

The suit seeks compensatory and punitive damages, attorney's fees and restoration of full pension benefits.

City Council met in executive session on Dec. 12 to discuss a number of different lawsuits against the city

Government bodies often weigh the risk of potentially losing a lawsuit. They sometimes vote to settle a case out of court, paying what they consider a smaller sum than they might risk losing in legal fees for even a winning trial. The city is insured by the Atlantic County Joint Insurance Fund.
OC4EVER December 16, 2013 at 01:48 AM
When are all the lawsuits gonna stop? Maybe if the city takes one to court it may stop others from going that route for the cash cow. And then we will see how good a lawyer Mrs. McCrosson really is. Afterall, it is very easy to settle out of court and say it costs the city less. Perhaps if you take one on the chin, no more will follow when they realize they will have to go the distance and not settle for minimum legal fees and a big payout. The city should go full bore and end the insanity.
OCnjOC December 16, 2013 at 02:15 AM
The lawsuits are caused by deliberate negligence by City employees, the elected officials, and the welfare cheats in OC who vote these people in so they can get free stuff. McCrosson is a real estate lawyer who got the job because she did a bunch of real estate transactions. She could not even resolve the issue with mopeds and motor vehicles. The City says she only has to work a little more than 10 hours per week even though the ordinance says "full time." I would think the people involved would be arrested for embezzlement but everybody goes along with it. If she goes over the 10 or so hours per week the city Council authorized extra money for her law firm. If she works 40 hours per week should would get somewhere in the neighborhood of $400K. of course since she only knows real estate sometimes they have to hire outside attorney. Sometimes they bring back the old OC solicitor who was removed after those billing issues but they use his law firm's name so most people don't realize what is happening. Nothing these people do is legitimate, sensible, or legal so don't expect anything except a disaster so you won't be disappointed at the result.
Robert Torrissi December 16, 2013 at 07:59 AM
Hold on a second. LIFEGUARDS get pensions?!?!?!?!?! If the lifeguards are overseen by the fire department, the experts in public safety, shouldn't "Senior" lifeguards be somebody in their late 20's? Maybe its just me...
Salt E Water December 16, 2013 at 08:42 AM
Age discrimination in the workplace is a real issue, but the reality is there are certain professions where the purpose of the job (saving peoples' lives) outweighs the right of someone to continue to work in a chosen profession that by definition requires a high level of physical fitness. The Borgata recently won a lawsuit that allowed them to fire cocktail servers for gaining too much weight, because part of their job description included having a certain appearance. It would seem that being able to save someone's life would be a more significant reason than being "eye candy" for patrons.
Charlie Caucci December 16, 2013 at 10:57 AM
Its simple, if the City is right they should fight the lawsuit. If the City did something wrong they should settle the lawsuit. Time will tell all.
Eric Sauder December 16, 2013 at 11:43 AM
We use settlements to avoid responsibility for wrong doing which only leads to more lawsuits and more settlements. That's how things work here in Ocean City. If someone, anyone was held accountable for their actions things might change and the number of settlements would likely go down. Once you settle a lawsuit you set a precedence. Suing becomes easy money. Another example of your tax dollars hard at work. Yeah part time beach patrol members receive a pension. Supervisors make (I think) around $45,000 a year for what mostly amounts to a summer job.
Eric Sauder December 16, 2013 at 11:56 AM
The now defunct Ethics Commission had a finding against a supervisor in the Beach Patrol who was alleged to have falsified records. The case was dropped and the end result was that the Ethics Commission was disbanded. The supervisor received a raise (retroactive no less) and a promotion. Hamilton (mentioned above) was the whistle blower. He received a settlement with a gag order attached to it. This is all old news now but some people might not be aware of it. You would think, with these lawsuits related to the K-9 unit that the City would re-evaluate the need for one. The dog who was cited in the attacks died. Don't know what happened to the handler. As far as I know nothing. They simply got a new dog for the K-9 unit. That was the subject of another settlement mentioned here (Petnik.) A prior lawsuit against the PD (for a K-9 attack) was already settled (Moyer.)
Eric Sauder December 16, 2013 at 11:58 AM
ka-ching ka-ching.
George December 16, 2013 at 12:39 PM
couple of thoughts. 1. This is the new normal. 2. This will only get worse in the future 3. The gravy train has left the yard and is picking up passengers. 4. In down economic times, this is the reality to supplement their unemployment, food stamps, and other benefits. 5. Unions do a wonderful job to get you in, and, well, we know the rest of the stories.
Captain Joel S. Fogel December 16, 2013 at 12:56 PM
Old lifeguards never die.....we just lose our Oars ! Capt. Fogel Lifeguards for Life www.captainfogel.com
CTA December 16, 2013 at 01:07 PM
One would think senior staff would know when it was time to step aside from sitting on the stand.......I guess they don't, Think that is.......
Captain Joel S. Fogel December 16, 2013 at 01:10 PM
Older guards have skills and abilities which are valuable and go beyond their age such the ability to spot a rescue almost before it occurs......part intuition, part experience. They also make great trainers.....
CTA December 16, 2013 at 01:15 PM
Joel, I'm referring to the ability to sit the wood and actually make the save. Not the fund of knowledge.....I walked away form active guarding after 28years because it was physically time to do so.......I still coach and train...but let the studs do the save as I back them up......these seniors want to continue to sit wood....no!
vic December 16, 2013 at 01:18 PM
........and receive great pensions!
Captain Joel S. Fogel December 16, 2013 at 01:20 PM
Uncle Joe Broome worked into his 60's on ACBP as Chief. Boredom drove me away but last year I went to test for the Miami Dade Fire Rescue.....I'm 70.
Jim Scarano December 16, 2013 at 09:10 PM
I would feel safer being guarded by an experienced guard than a hungover rookie "stud" who I've witnessed talking to the ladies.
Silver Mariposa December 17, 2013 at 10:59 PM
Oh NO... here we go again! (How many times have I sad that recently?). Another lawsuit that will be settled. This one is about life and death. I would not want a guard who could not pass minimum test requirements be the only one there to try and rescue me. I am getting older and I realize that the body starts to slow down and there are some things that not even job experience can compensate for. Know when to step out and collect that generous pension ?!!!! that we the taxpayers provide to you. BTW- time to cut out the pensions for part time workers!
WDH December 19, 2013 at 12:25 PM
Seems as though many citizens are telling the administration to "man up" and stop giving tax money to whiners. Ooops, did I really call them whiners? Sorry...but another word escapes me at the moment. Age takes its toll...honest...then it's time to move on.
TAR December 22, 2013 at 10:47 PM
Every city should fight these law suits. Let a jury of taxpayers hear the case. Explain to them that the settlements come from their hard earned money. That should stop these cases from becoming commonplace.
Captain Joel S. Fogel December 23, 2013 at 11:13 AM
Happy holidays to all and especially to those who risk their lives for us on a daily basis ! :)
WDH December 26, 2013 at 08:54 AM
Hey TAR, you're right on the mark. I'd gladly serve on that jury....

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