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City of Mitchell settles lawsuits with former Palace Transit drivers

The city of Mitchell has settled for an undisclosed amount with three former Palace Transit drivers who claimed they were victims of age and disability discrimination.

The three plaintiffs -- James Nichols, 55, John Robertson, 58, and Curtis Dumas, 57 -- each filed a lawsuit last year against the city. In September 2011, the three lawsuits were combined into one case.

Attorneys for the city and three former drivers reached an agreement after they met in mediation Nov. 19 in Sioux Falls. The case had been scheduled to go to trial this week.

Because of a confidentiality agreement, both parties have agreed not to reveal the amount the case was settled for, according to Sioux Falls-based attorney Lisa Marso, who represented the city in the case.

The city belongs to a statewide risk pool that will pay for the settlement and the cost of an attorney, Mitchell Mayor Ken Tracy said.

All claims brought against the city by the three former drivers will be dismissed as a result of the settlement, Marso said.

"For three years this has been hanging over the city as well as the drivers," Tracy said. "It's good to put it behind us now and move on."

The dispute began in January 2009 when the city of Mitchell adopted a policy requiring its Palace Transit bus drivers to pass a federal Department of Transportation physical exam. The physical is the same one required of all interstate truck drivers.

Nichols, Robertson and Dumas were all given the physical in 2009. Nichols and Robertson did not pass and were fired shortly after. Nichols' complaint says he was fired because of his "medical history." Robertson's complaint says he was fired for both his "medical history" and because "he was on insulin."

Dumas passed the physical and was given a one-year certification but was placed on medical leave after having heart bypass surgery in March 2010. When that leave expired in May 2010, Dumas was fired.

On Nov. 9, U.S. District Judge Lawrence Piersol ruled the city violated the Americans with Disabilities Act when it required the three former drivers to take the DOT physical, because they drove only on in-town roads, not interstate roads.

Piersol found the state Legislature specifically exempts intrastate drivers -- such as Palace Transit drivers, who only drive within the confines of a city -- from the requirements of the DOT physical.

The ruling "diminished" the city's case in court, prompting the settlement, according to the mayor.

"We decided it would be best to arbitrate," Tracy said.

Because of Piersol's ruling, the city will need to establish new physical requirements for Palace Transit drivers, Tracy said.

Mitchell Human Resources Director Billie Kelly said she will meet soon with City Attorney Carl Koch and senior services staff members to discuss the city's options. She expects the process of creating new physical requirements to take a couple of months.

During that time, Kelly said, anyone hired as a Palace Transit driver will need to pass the basic physical required of all city employees, but not the DOT physical Nichols, Robertson and Dumas took.

Palace Transit does not currently have any open driver positions, Kelly said.

Tracy is open to the possibility of Nichols, Robertson and Dumas driving for the city's bus service again.

"They certainly would be free to apply for openings should we have them," he said.

Tracy said the litigation "was not a factor" in his decision to forgo renewing the appointment of Senior Services Executive Director Brenda Paradis last July.

Paradis was director and oversaw Palace Transit in 2009 when Nichols, Robertson and Dumas were fired.