Lafayette – Former St. Martinville Assistant Chief of Police Nary Smith is suing the city in federal court here over his dismissal last year for being too old.

Smith, who turned 65 in February 2011, is asking for his job back, back pay and other lost earnings, compensation for damages and money to pay his lawyer.

The suit was filed on Monday, May 21.

Smith said he intends to follow up on suits for sex and race discrimination as soon as he is given the green light by the federal Equal Employment Opportunity Commission (EEOC).

“I don’t want to sue, don’t make me sue,” Smith said he told the city administration. “But I gotta do what I gotta do.”

According to documents filed with the lawsuit, Smith received a letter from Mayor Thomas Nelson on Feb. 7, 2011, stating that Smith would be terminated effective Feb. 27, his 65th birthday, pursuant to a 1977 ordinance stating that, “Any employee of the municipality’s police department who has attained the age of sixty five (65) years shall be separated from the department by the appointing authority.”

In his suit, Smith argues that at the time of his termination, the police department employed two crossing guards who were over 65, Artie Roy, 69, and George Resweber, 68, and a police dispatcher, Theresa Thierry, was allowed to retire at the age of 67.

Smith initially asked the City Council to reinstate him based on a state law (RS 11:133) that says the appointing authority, in this case the St. Martinville City Council, may extend a policeman a year beyond his 65th birthday if it believes “that the continuance in service of the employee ... would be advantageous to the public service by reason of his expert knowledge and qualifications.”

City attorney Allan Durand said he asked the attorney general’s opinion on the matter but cancelled his request when Smith filed as a candidate for state representative, a position subsequently won by former State Police Superintendent Terry Landry.

Durand said he considered the question moot since Smith could not be a city policeman and a state legislator at the same time and had apparently chosen the latter course.

Smith appealed to the EEOC in New Orleans, which gave him approval to sue after an attempt at mediation broke down. (Smith says the city failed to respond but Durand said he had asked to have the mediation in St. Martinville, to accommodate all the witnesses, and it was the EEOC that did not respond.)

Smith said his basis for bringing sex and race into the issue, providing EEOC in Washington agrees, is that the dispatcher who was allowed to stay on until age 67 is female and the two aged crossing guards are white.

Smith is being represented by Ronald L. Wilson of New Orleans.