Paul Hunter’s trial has been moved from Dec. 13 to Jan. 24, but there will be fewer charges. Hunter filed a federal complaint against the City of Copperhill and Mayor Cecil Arp, claiming his firing was due to discrimination for age and disability.

When the jury trial does begin, there will be fewer charges to consider, as U.S. District Judge Harry S. Mattice Jr. agreed with the city that the federal charges do not apply. In an order handed down Nov. 29, Mattice dismissed Hunter’s charges for violation of the Americans With Disabilities Act, the Age Discrimination Employment Act, “1983 violations”, and his demand for punitive damages. Claims that remain relate to Tennessee Human Rights Act for age discrimination, Tennessee Disability Act disability discrimination and breach of contract. The city had asked for Summary Judgment or dismissal of all charges.

The judge agreed with the city that the ADA and ADEA define an employer as a person with 15 or more employees, which does not apply to Copperhill. The “1983 Violations” claim are based on Hunter’s allegation that the city violated federal law by depriving him of protections prohibiting discrimination and unlawful pay practices. The judge noted that this charge is based on the alleged violations of ADA and ADEA. Since those charges have been dropped, he said, there are no longer any underlying violation of federal rights. He also notes that Hunter claimed violation of due process in his response but did not ask to amend his Complaint to include the new claims. Mattice ruled that the new claim would not be allowed.

As to the state age discrimination claim, the judge ruled that there are issues for the jury to consider, such as alleged derogatory comments about Hunter’s age, whether Hunter was replaced by a younger person (the city claims that no one fully replaced him), and whether the age difference (nine years) is substantial enough to support the claim.

Regarding the state disability discrimination claim, the judge said there are significant disputes over whether Hunter is disabled because of his hearing loss and whether he was fired based solely upon that disability. The judge pointed out there is conflicting evidence on Arp’s knowledge of the disability. A key element in Hunter’s argument is an article in the Blue Ridge News-Observer in which Arp is quoted as saying the man who came to work after Hunter has maintenance experience and no health problems and would fit right in with the city’s needs. The judge notes the city did not attack the accuracy or credibility of the article or its author. He ruled there is enough evidence to survive the Motion to Dismiss, which was denied.

The final claim is for breach of contract. Hunter claims the city handbook guarantees there will be certain procedures, including a written warning, before termination. This provision, he said, applies to those who were employed when the ordinance was passed in 2002; future employees are “at will” and may be dismissed without cause and without following procedures. The judge noted that the city did not provide enough defense for this argument to justify dismissal of the claim.

Finally, the judge denied a request to drop Arp’s individual liability.

Mattice also ruled on several of the pre-trial motions, while reserving judgment on others. He agreed with the city’s motion to exclude any reference to settlement, compromise, or offer to hire Hunter back, to exclude unfounded allegations that Hunter had an affair, and to exclude all questions about domestic abuse, which Hunter’s wife said occurred at night only after his return from Vietnam.

The judge has not ruled on the city’s request to exclude documents filed by the city as part of the Equal Employment Opportunity Commission and Tennessee Human Rights case, Hunter’s motion to exclude the EEOC determination, the city’s request to exclude references to Hunter’s military background, the city’s request to exclude testimony by Hunter’s audiologist, Hunter’s request to exclude all references to his own drinking habits and any theory that alcohol consumption is linked to insubordination, and Hunter’s request to exclude attempts to claim he does not have a disability because he has hearing aids.

The city has responded to Hunter’s pre-trial motions.

The city notes that it has asked to exclude all documents relating to Hunter’s EEOC complaint, but Hunter only wants to exclude the determination letter. It says Hunter does not show why documents prepared by counsel in formulating a response to the EEOC have any bearing to the matters of this case. In particular, the EEOC response states that the person who was retained to replace Mr. Hunter is over the age of 40. The city’s argument is that the context does not include reference to that employee being retained to replace all or all of Hunter’s job duties; what was important was the age of the employee who started working after Hunter was terminated, the city notes. It goes on to say there is no proof that all of Hunter’s job duties were replaced or even substantially replaced by any one employee. Allowing the statement to EEOC to be included at trial, the city states, would be unfairly prejudicial to the city. Further, it would require the city’s attorney – who wrote the response to EEOC – to become a witness and thus unable to proceed with the defense at trial.

In response to Hunter’s request that his drinking habits be excluded, the city notes that alcohol consumption plays a relevant role even thought the city does not assert that Hunter was terminated due to his alcohol consumption. The city states that how Hunter’s drinking habits may have affected him in terms of humiliation and embarrassment, which he alleges, are relevant. The city notes that it has asked to exclude testimony by Hunter’s expert, Tiffany Haney, but Hunter wants to selectively pick which portions of her deposition can be used. It notes the city cross-examined her on the issue of alcohol and the jury should be allowed to hear that testimony if the Court rules that her deposition should be used.

In responding to Hunter’s motion to exclude comments that he does not have a disability because he has hearing aids, the city states that it has maintained all along that Hunter does not have a hearing disability that they were aware of at any time. The city said it does plan to have testimony from individuals to discuss the fact that Hunter did not wear hearing aids and that he never appeared to have any hearing disability, noting the lack of wearing hearing aids assists the defense theory that Hunter did not have a substantial limitation on a major life activity because of a disability and also assists the defense theory that Hunter was not regarded as having a hearing disability.