No Surprises There, As Kentucky Appeals Court Upholds Judge Steve Wilson's Dismissal Of Bias And Fraud Case Against Bowling Green City.
Court upholds ruling for city in bias lawsuit
By JUSTIN STORY
The Kentucky Court of Appeals upheld the dismissal of Jerry Wells’ age discrimination and fraud lawsuit against the city.
In an opinion issued Friday, the state appeals court unanimously upheld Warren Circuit Judge Steve Wilson’s decision last year in favor of the city.
Wells, a retired city police officer, was named interim chief of the Bowling Green Police Department in 2006 after then-Chief Bill Waltrip’s retirement.
He retired in October 2006 and filed a lawsuit against the city the following year in which he claimed that he was prevented from being considered for the permanent chief’s position because of his age.
According to testimony in the case, the city has a long-standing policy known as the “57 rule,” which requires police and firefighters to retire at age 57. Wells turned 56 the year he became interim chief.
Wells claimed that City Manager Kevin DeFebbo indicated to him in a June 2006 meeting that the permanent BGPD chief would have to be someone who could give eight to 10 years of service.
Wells also accused the city of fraud, claiming the city falsely told him that the person who assumed the interim chief position would be ineligible for appointment as the permanent chief. Wells further claimed that the procedure was “illegally adopted” during a closed session of the Bowling Green City Commission and was conveyed to Wells to dissuade him from seeking to become the permanent chief.
The case was dismissed from circuit court, with Wilson’s ruling siding with the city’s contention that Wells could not prove age discrimination because he did not apply for the permanent chief position.
The appeals court agreed with the circuit court’s ruling.
“Wells admitted during his deposition that he chose not to apply for the permanent position because he was too busy focusing on his doctoral studies, not because he had been convinced that he was too old to apply or that he was ineligible to apply because he accepted the position of interim chief,” the state appeals court opinion reads in part.
The appeals court also upheld the circuit court’s ruling against the fraud claim, writing that the city had not misled Wells and had indicated that whoever was named acting chief would not be considered for the permanent position.
Bowling Green attorney Greg Stivers applauded the appeals court’s decision.
“I know the city is very pleased with the ruling from the court of appeals,” Stivers said.
Wells ran unsuccessfully for city commission last year and submitted his name to be appointed for the vacant commission seat eventually filled earlier this year by Commissioner Melinda Hill.
Wells’ attorney, Matt Baker of Bowling Green, said he and his client have discussed the appeals court ruling over the phone and will discuss whether to pursue the case further.
“I think we are inclined to probably seek further review by the Kentucky Supreme Court, though we haven’t settled on that decision yet,” Baker said.
Wells said he and Baker would meet this week.
“If we firmly believe we have a valid issue to forward, it is at the decisional point I will be faced with a personal dilemma,” Wells said in an email to the Daily News. “Whether to press ahead within our judicial system that so far has been deaf, or be freed of the burden of no longer having to remain silent in a public sense for court reasons on all of the facts and events that occurred between April and October, 2006.”
Baker and Wells would have 30 days to file a motion for discretionary review with the state Supreme Court, and the city would have 30 days to respond. The state’s high court can decide whether to hear the case.
By JUSTIN STORY
The Kentucky Court of Appeals upheld the dismissal of Jerry Wells’ age discrimination and fraud lawsuit against the city.
In an opinion issued Friday, the state appeals court unanimously upheld Warren Circuit Judge Steve Wilson’s decision last year in favor of the city.
Wells, a retired city police officer, was named interim chief of the Bowling Green Police Department in 2006 after then-Chief Bill Waltrip’s retirement.
He retired in October 2006 and filed a lawsuit against the city the following year in which he claimed that he was prevented from being considered for the permanent chief’s position because of his age.
According to testimony in the case, the city has a long-standing policy known as the “57 rule,” which requires police and firefighters to retire at age 57. Wells turned 56 the year he became interim chief.
Wells claimed that City Manager Kevin DeFebbo indicated to him in a June 2006 meeting that the permanent BGPD chief would have to be someone who could give eight to 10 years of service.
Wells also accused the city of fraud, claiming the city falsely told him that the person who assumed the interim chief position would be ineligible for appointment as the permanent chief. Wells further claimed that the procedure was “illegally adopted” during a closed session of the Bowling Green City Commission and was conveyed to Wells to dissuade him from seeking to become the permanent chief.
The case was dismissed from circuit court, with Wilson’s ruling siding with the city’s contention that Wells could not prove age discrimination because he did not apply for the permanent chief position.
The appeals court agreed with the circuit court’s ruling.
“Wells admitted during his deposition that he chose not to apply for the permanent position because he was too busy focusing on his doctoral studies, not because he had been convinced that he was too old to apply or that he was ineligible to apply because he accepted the position of interim chief,” the state appeals court opinion reads in part.
The appeals court also upheld the circuit court’s ruling against the fraud claim, writing that the city had not misled Wells and had indicated that whoever was named acting chief would not be considered for the permanent position.
Bowling Green attorney Greg Stivers applauded the appeals court’s decision.
“I know the city is very pleased with the ruling from the court of appeals,” Stivers said.
Wells ran unsuccessfully for city commission last year and submitted his name to be appointed for the vacant commission seat eventually filled earlier this year by Commissioner Melinda Hill.
Wells’ attorney, Matt Baker of Bowling Green, said he and his client have discussed the appeals court ruling over the phone and will discuss whether to pursue the case further.
“I think we are inclined to probably seek further review by the Kentucky Supreme Court, though we haven’t settled on that decision yet,” Baker said.
Wells said he and Baker would meet this week.
“If we firmly believe we have a valid issue to forward, it is at the decisional point I will be faced with a personal dilemma,” Wells said in an email to the Daily News. “Whether to press ahead within our judicial system that so far has been deaf, or be freed of the burden of no longer having to remain silent in a public sense for court reasons on all of the facts and events that occurred between April and October, 2006.”
Baker and Wells would have 30 days to file a motion for discretionary review with the state Supreme Court, and the city would have 30 days to respond. The state’s high court can decide whether to hear the case.
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posted by KYJurisDoctor at 3:03 PM
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