By Mitchell Riese and Mitchel Wilson
In Otto v. City of Newport, a former police officer alleged his employer discharged him because of his age, but the Eastern District of Kentucky granted the defendant employer’s motion for summary judgment because there “is no evidence that the Plaintiff was qualified for the position, and there is no direct evidence of the Defendant’s discriminatory intent.”
Fred Otto, a career police officer, had 21 years of experience at various precincts. In 2010 he began working as a patrol officer for the City of Newport, but unlike two other new hires, he had not completed a required training course; he was therefore disqualified him from receiving an incentive bonus. Furthermore, Otto struggled to qualify with various weapons, such as the baton and his service weapon. Otto claimed he would have qualified if he had been given more remedial training.
The Court ruled that Otto could only plausibly satisfy two of the four elements necessary to prove his claim, and therefore his case could not proceed to trial. Otto did show that 1) he was over the age of 40; 2) he suffered an adverse employer action by being discharged; and 3) he was replaced by a younger officer. However, the Court ruled Otto could not show that he was qualified for the job:
The fundamental flaw in Plaintiff’s claim is that he has failed to offer any convincing evidence that he showed proficiency with either the Glock handgun or the police batons. In fact, by Plaintiff’s own admission, he failed some of the necessary tests. Further, a letter from Police Chief Robbie Hall indicates that Plaintiff failed repeatedly to meet the department’s standards for firearms proficiency. These failings continued, even after remedial training.
This case is another illustration of the fundamental principle of employment law that the employee must be able to show that they are capable of performing the position. In this case, Otto could not show that his age was the reason why he was fired. Rather, the evidence showed that he was fired because he was not able to demonstrate proficiency in areas that are clearly critical for a law enforcement officer.
