South Charleston wants age discrimination case in federal court

By Audrey Holsclaw | Aug 15, 2008

CHARLESTON -- The South Charleston Police Department has filed a notice of removal in an age discrimination case.

Vicki Rains of Kansas filed an application for employment with the SCPD, and when she received a letter confirming the receipt of her application, she called the SCPD to set up an appointment to take the required physical ability test.

On July 21, 2006, Rains traveled 900 miles to South Charleston and met with the Chief David Dunlap. The next morning, on the day of the test, Rains filled out a registration form, and SCPD told her she was too old to test, she claims.

After traveling such a long way, Rains said she asked if she could test anyway, as she was already a certified law enforcement officer and detective in Kansas.

She said she was told no again, but this time, specifically, "that 37 years old was too old for the state of West Virginia." She was then told that there was a state law that no one over the age of 35 could test for law enforcement.

Since filing her application, Rains discovered there were several applicants over the age of 35 who have applied, taken the physical ability test and been employed as officers for the SCPD.

Rains' lawsuit, filed July 11, 2008 in the Kanawha Circuit Court by Charleston attorney W. Jesse Forbes, hinged on the idea that West Virginia Code 8-14-12, which sets the highest age level for law enforcement in West Virginia at 35 years of age, is unconstitutional, arbitrary, and discriminatory.

Rains said she believes it violates her civil rights. She also alleges that SCPD is liable for damages as a result of its failure to inform her of the age limit before she traveled 1,800 miles round-trip.

Rains was seeking a trial by jury to award her damages for loss of past and future income, wear and tear to her vehicle, annoyance, inconvenience, severe emotional distress, severe mental anguish, conscious pain and suffering, embarrassment, humiliation, violations of her basic human rights and civil rights, interest, and attorney's fees.

In the notice, filed Aug. 11 by Jason Wandling and William Slicer of the Charleston firm of Shuman, McCuskey & Slicer, SCPD cites Rains' question of the constitutionality of West Virginia Code 8-14-12 as its basis for the removal, stating, "District Courts have original jurisdiction (over) ... cases that involve a 'federal question.'"

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