FORMER ASSISTANT FIRE CHIEFS FILE AN AGE DISCRIMINATION COMPLAINT

Two former assistant Cape Girardeau fire chiefs have filed complaints with the Equal Employment Opportunity Commission, accusing the city of Cape Girardeau and its Fire Department of age discrimination.

The complainants are Paul Kesterson, who retired July 1, and Jim Niswonger, who was demoted from assistant fire chief to firefighter.

In his complaint filed in July, Niswonger, 48, alleges his demotion was based on age discrimination, not because of unsatisfactory job performance as was stated in a letter to him from the city.

On April 15, Fire Chief Gene Hindman announced a restructuring of the fire department that included the July 1 retirement of Kesterson, and the demotion of Niswonger from assistant fire chief to fire platoon captain.

But Niswonger's attorney, Brent Jaimes of St. Louis, said Niswonger was notified in a May 12 letter from the city that effective May 18, he was being demoted from assistant fire chief to firefighter, with a substantial cut in salary and fringe benefits, because of a poor job-performance rating. Niswonger denied the city's allegation.

Niswonger has been with the fire department for 21 years. He was appointed assistant fire chief Aug. 1, 1986.

Kesterson, 59, filed his complaint with the EEOC regional office in Sikeston Aug. 15.

Kesterson's complaint says he was forced to retire from the fire department against his will. "I was notified on April 14 that I would have to retire and there were no other options," he said. "I did not want to retire," said Kesterson, a 40-year veteran firefighter who was appointed assistant fire chief in 1975.

"I believe I have been forced to retire because of my age," he said. "Although the city used the restructuring of the fire department as the reason for my retirement, they still retain younger employees with less seniority and experience."

Referring to Niswonger, Kesterson said in his complaint that similar action was taken against another member of the fire department. In an April 19 interview with the Southeast Missourian, Kesterson had stated, "I was not ready to retire."

Jaimes said the complaints will be investigated by the Sikeston regional office of the EEOC and the Missouri Commission on Human Rights.

Said Jaimes: "The complaints are dual filings. When you file a complaint with the EEOC, it is automatically filed with the Missouri Commission on Human Rights. The EEOC will conduct the investigation and share its information with the state commission."

Jaimes said the investigation will include an examination of both men's personnel records and interviews to determine if there is merit to their complaints. "Based on my past experience with EEOC complaints, the investigation could take as long as one year but it might be somewhat less than that," he said.

Jaimes said 180 days after an EEOC complaint is filed the complainant can request a right-to-sue letter from the EEOC, regardless of the stage of the investigation. He said the EEOC will grant the letter without making any conclusions to their investigation. At that point, the complainant has 90 days to file a civil lawsuit in a federal court.

City Manager J. Ronald Fischer said he was not familiar enough with the complaints to comment on them. He referred a reporter to City Attorney Warren Wells.

Wells declined to comment specifically on the matter. "It would not be appropriate for me to comment since it is a matter of possible litigation," said Wells. "I can say the city is working with the EEOC and human rights commission to provide information they have requested during their investigation," Wells said.

Under the restructuring plan announced by Hindman, the two vacancies created by Kesterson's retirement and Niswonger's demotion to firefighter were filled by the fire department training officer, Mark Hasheider, and fire inspector, Tom Hinkebein.

Both have been assigned the additional assignment of duty officer. They will rotate on a three-week basis with Assistant Fire Chief Max Jauch. During the weeks when Hasheider and Hinkebein are duty officers, they assume the duties and responsibilities of assistant fire chief. On all fire calls, they are in charge of the fire scene and supervise captains.

In addition to their regular 40-hour work-week duties, the duty officer scheduled that week also responds to all fire calls. After hours he responds from his home.