The EEOC has filed an appeal of the decision of the Federal District Court in the pension system age discrimination case. In August District Judge Richard D. Bennett ruled that the county doesn’t have to pay back the workers who overpaid into the pension system. Baltimore Sun article
A Baltimore County police officer has filed suit against the county, alleging she was suspended after she refused to comply with unlawful orders to provide her private medical information and submit to mental health treatment.
Heather Flanary returned to full-duty work following a traumatic on-duty incident in 2013, according to her lawsuit, but has since faced a “relentless and escalating course of conduct” by the county and police department despite having been declared fit for duty multiple times after the incident.
The lawsuit, filed Wednesday in U.S. District Court in Baltimore, alleges violations of the Americans with Disabilities Act.
“Officer Flanary has been and continues to be targeted, harassed and threatened relentlessly with discipline and job loss, after returning successfully from a traumatic incident where she risked her life in the line-of-duty and resumed performance of her job with great commitment and distinction,” the complaint states. “Defendants’ discriminatory acts, illegal medical inquiries, and harassment have caused and continue to cause Officer Flanary great emotional distress and damage to her career.”
Ellen L. Kobler, a Baltimore County spokeswoman, said Thursday the county would not comment on pending litigation.
The 2013 attack did not leave Flanary physically injured but resulted in her partner shooting the attacker to prevent him from injuring her or seizing her weapon, according to the complaint. Flanary and two other officers were off duty for a week following the incident until they were cleared by the department’s contract psychologist to return to their regular patrol duties.
About two months later, Flanary experienced a “stress reaction” while she was at the police firing range, the lawsuit states. As a result, she was suspended, placed on administrative leave and ordered to submit to a fitness for duty evaluation. The contract psychologist deemed her unfit and recommended she engage in therapy and remedial work at the range.
Flanary complied, and her private psychologist later diagnosed her with a mild form of post-traumatic stress disorder, according to the complaint. In January 2014, her psychologist told her the county had stopped paying his bills, so she initiated a worker’s compensation claim to continue coverage for her therapy, according to the complaint. She returned to full duty in March 2014 and completed her therapy treatment several months later, the suit states.
Later that year, she received a favorable performance evaluation, and in early 2015, both the department’s psychiatrist and a psychiatrist designated by her worker’s compensation attorney deemed her fit for duty.
The police department opposed Flanary’s worker’s compensation request at a hearing in June 2015 but the Maryland Workers’ Compensation Commission ruled in her favor. But several months later, “out of the blue,” she was ordered to again submit to a fitness-for-duty examination, the lawsuit states. Flanary complied, fearing discipline if she disobeyed, despite knowing there was no basis for the “highly intrusive, stigmatizing” request, the suit states.
Flanary was declared fit for duty, but the county’s human resources office in November served her with an order from the county police chief requiring her to comply with certain recommendations by the department’s psychologist, including that she continue to attend therapy, the suit states.
Flanary acknowledged receiving the order but refused to authorize the department’s psychologist to discuss her treatment with her private therapist.
In January, the county ordered Flanary to comply with six mandatory conditions to continue work as a full-duty police officer. The conditions included providing contact information for her private therapist, as well as authorizing the therapist to give the county confidential medical information.
When Flanary refused to provide anything other than a letter confirming she had attended therapy sessions, she was assigned to desk duty, according to the complaint.
Flanary filed suit for emergency injunctive relief in February, and a Baltimore County Circuit Court judge entered a temporary restraining order barring enforcement of the department’s orders. She was assigned back to patrol the next day but was returned to desk duty once another judge dissolved the restraining order.
In August, she was suspended and assigned to civilian administrative duties.
The lawsuit seeks $400,000 in compensatory damages, as well as an injunction lifting the suspension, preventing the county from conducting further medical inquiries of Flanary related to the 2013 incident and preventing the county from compelling treatment as a condition of employment or full duty status.
Kathleen Cahill, a Towson solo practitioner representing Flanary, declined to comment Thursday.
The case is Heather Flanary v. Baltimore County et al., 1:16-cv-03422-CCB.
The chart below depicts the complaint comparison in a year over year format for Baltimore County Police officers.
|Type of Complaint||2010||2011||2012||2013||2014|
The 36th Citizens’ Academy Program has been scheduled for the Spring of 2017. The Program consists of 16 sessions which includes 15 consecutive weekly evening classes (6:30-9:30 PM) and one Saturday class (9:00AM-3:00PM). The following dates and days of the week have been selected for the 36th Citizens’ Academy.
March 1, 2017 through June 7, 2017 – Wednesday evenings
Saturday date is pending at this time
The majority of the classroom sessions will be held at the Public Safety Building.
Nomination Forms will be accepted through February 13, 2017. Class size will be limited to a maximum of 50 attendees.
Information and application for electronic submission is located on the Internet through the Baltimore County Government website at www.baltimorecountymd.gov under Agency – Police – Youth and Community Resources – Citizens’ Police Academy.
Attached is a copy of the 2017 Brochure and Nomination Form for those without Internet access.
Please recommend this Program to citizens or employees you feel may benefit from this training and experience.
Please let me take a moment to thank you for Wednesday. What an honor to have met such wonderful people. As a mom, the feeling of seeing my little boy so happy cannot be put into words. The turn out just shocked and humbled us. We are forever grateful!
Thank you just isn’t enough!
As the political season heats up, Baltimore County is warning government employees that it plans to enforce a long-standing policy against “brutal or offensive” behavior in the workplace and on private time, including on social media.
County officials say the increasing coarseness of online behavior, particularly about the presidential election, led them to remind employees of the policy and require supervisors to implement it.
“Social media, while it has encouraged in many cases lively dialogue, it also at times promotes a passion that is very close to walking a line in terms of how we communicate with one another,” said Don Mohler, spokesman and chief of staff to County Executive Kevin Kamenetz.
Mohler said the county knows that people are increasingly passionate about political and social issues “and how comfortable the public is in sharing those passions in a public forum, whether it be on Facebook, Twitter, Instagram, Snapchat, you name it.”
While freedom of speech is a bedrock of American democracy, not all speech is protected under the First Amendment. Numerous court cases have held that employers — including governments — can discipline workers for things they say, according to Baltimore County Attorney Michael Field.
For example, a county employee who hints at violence toward a member of the public or another employee would be in violation of the policy, he said. The same goes for someone who uses derogatory language or implies a member of the public wouldn’t get the same service or treatment from the county as another person.
But taking stances on divisive issues would still be allowed.
“If someone writes, ‘I don’t believe in Black Lives Matter’ or ‘All lives matter,’ that is clearly protected speech, and it’s not brutal or offensive,” Field said.
The county sent a memo to all employees recently to alert them to the policy and to warn that it would be enforced. The memo, signed by County Administrative Officer Fred Homan, says the county will take a “zero-tolerance approach” to violations of the policy.
“It is not our intention to eliminate humor or free political expression from your personal lives,” Homan wrote.
The memo warns employees that even what they say on their personal social media accounts and in their personal time can affect their job status.
County officials said they had informal talks with union leaders before issuing the memo to the county’s 8,000 employees.
John Ripley, president of the Baltimore County Federation of Public Employees, which represents about 1,500 county workers, said he’s aware of the memo but declined to comment on it.
The policy has rarely been enforced in the past. But supervisors are now required to investigate any reports of possible policy violations. Supervisors won’t be responsible for watching social media to try and ferret out offenders.
“This is not Big Brother,” Mohler said. “We’re not monitoring a thing. We’re not surfing social media sites to see who is saying what. It will be complaint-driven.”
Employees who are in violation of the policy can be reprimanded with “progressive discipline,” ranging from a verbal warning up to dismissal. Employees who are members of unions can file grievances to challenge disciplinary decisions.
The county Fire Department put a new social media policy into place last year. The guidelines prohibit members from posting images of departmental uniforms, vehicles and other property “that present the Fire Department in a negative or unprofessional light.”
Among other rules, fire employees also are not allowed to post things that constitute harassment, hate speech or libel.
The Police Department also is working on a new policy.
“Both of these departments have been working to clarify these issues for employees for some time,” said Elise Armacost, a spokeswoman for the police and fire agencies. “We find that they are anxious or hungry for information that clarifies where the boundaries are.”
David Rose, second vice president for the Baltimore County Fraternal Order of Police Lodge No. 4, said he does not know of any police officers being disciplined for social media use in recent yeas.
“Every once in a while, I’ll have someone that might call me and say, ‘I was going to post this thing on social media — what do you think about it?'” he said. “My remark has always been, if you need to ask that question, don’t post it.”
In Baltimore, a police lieutenant and the police union are suing the Police Department and Police Commissioner Kevin Davis over the agency’s social media policy.
Lt. Victor Gearhart, who was a patrol shift commander, was reassigned to work building security after activists demanded the department fire him for what they considered offensive tweets on his personal account. The lawsuit is pending in U.S. District Court.
Field said the county’s policy, which has been on the books since 1958, is narrowly written to apply only to “brutal or offensive” speech.
“There’s no circumstance under which being brutal or using epithets is protected speech,” Field said.
In December 2014, a county 911 employee did not face discipline when she posted on her Facebook page that “thugs” are more trustworthy than “any policeman.” She said she feared for her son’s safety when interacting with police because he is black.
At the time, Kamenetz defended the employee’s right to speak out on the issue but urged people to discuss the issue in a “positive and productive manner.” The employee faced strong backlash and eventually resigned from her job.
Conduct policies like Baltimore County’s are generally found to be legal when challenged in court, said Eric B. Easton, professor at the University of Baltimore’s School of Law, who specializes in media law, including First Amendment issues.
Government employers usually can’t restrict an employee’s speech on purely private matters, such as complaining about a relative. But on matters of “public interest,” the government can discipline employees for what they say, Easton said.
“They’re going to balance what I had to say and my right to say it against the efficiency and effectiveness of the government,” Easton said. “If what I say impairs discipline in my agency, has a detrimental effect on the mission of my agency, they can regulate that.”
Earlier this year the FOP filed a Class Grievance on behalf of 41 members who incurred an additional cost for filing an amended tax return because the County originally gave them incorrect Form W2’s and did not issue correct ones until seven weeks later. A total of 271 incorrect W2’s were given to our members who collectively had incurred additional cost of tax preparation totaling $2,393.50.
A grievance hearing was held on July 29, 2016 at the Office of Administrative Hearings in front of ALJ Lawrence Stahl. The FOP, in presenting its case, entered 22 exhibits as evidence in support of the grievance.
On September 7, 2016 ALJ Stahl issued his decision stating the grievance was denied. He does not mention the many positions or exhibits we presented in our case. He sates the FOP has no authority to present the grievance. The decision can be read here.
Several weeks before presenting this grievance FOP leadership and County Executive Kamenetz spoke about this grievance and asked him if he could help bring resolution and relief to those members who had incurred the additional cost becuse of the County’s error. His response was that he would allow the grievance to proceed in the process.
This once again shows the lack of this administrations will to take responsibility and resolve simple disputes even when their actions are clearly shown to be wrong.
The United States Federal Court recently found that the County did discriminate against older employees by having them pay more into the pension system than younger employees. The estimates of over-payments by employees reached as high as $19 million dollars. The County vehemently argued that neither prospective or retroactive relief was merited and was pleased with the decision when the court ruled in their favor by not requiring them to pay back the employees.
The irony here is, back in 2009 an audit of the pension system revealed that through an error by the County, they were not deducting the correct pension amount from some employees. The County quickly contacted those employees to have them pay back the contributions owed and they wanted interest on that money!
Another audit revealed the County had inadvertently overpaid an employee approximately $1,900 over three years. Again, they quickly contacted that employee to demand repayment.
It appears to be that when the Kamenetz Administration makes an error that causes employees to owe them money, they seek to collect and sometimes with interest. However, if they make an error that causes employees to incur an additional expense from their household the County strongly argues against any reimbursement. When they are successful in forcing employees to bear the expense of their error, they simply state, ”The County is pleased with this decision and happy that it was effectively able to finally end this litigation”.
Applications for the Fall, 2017/Spring, 2018 scholarships are available now by contacting Lodge #4. Nine (9) $3,000.00 awards are made each year.
Applications for these awards are open to the sons, daughters, adopted children, step-children or legally court-appointed wards, who are citizens of the United States. The applicant’s parent or guardian shall have been an Active or Retired member in good standing of Baltimore County Lodge #4 for at least one (1) full year prior to the date of application for the current year scholarship awards. The applicant must be or will be a full-time student at a recognized college or university.
The deadline to return the completed application with required attachments is February 1, 2017.
Our attorney in the retiree health care subsidy case has advised us that the county has two options as the result of the Maryland Court of Appeals decision in our favor. First, they have thirty days to ask the same court, the Maryland Court of Appeals to reconsider the decision they just rendered. Second, they have ninety days to petition the United States Supreme Court to hear the case.
We have communicated with the County Attorney, Mike Field to see what County’s intentions are going forward in this matter now that the Court of Appeals has ruled against them for the 2nd time. He has communicated to us that the County will take no further action in this litigation.
We are working with the financial institution where the funds have been in escrow to disseminate the funds to those affected in a timely manner.
Courts had already ruled in 2012 that the county’s pension system was discriminatory, because older workers were required to pay more than younger workers.
But on Wednesday U.S. District Judge Richard D. Bennett ruled the county doesn’t have to pay back the workers who were overcharged.
The county could have been on the hook for as much as $19 million in payments to the workers.
“We are greatly relieved to have it resolved at this point,” said James Nolan, an assistant county attorney.
It’s not clear how many workers might have been due payment. The county had said it would have taken years of research to figure out how much workers would have been owed.
Any repayments would have been focused on workers hired before 2007. That’s when the county ended its decades-long practice of setting pension contribution rates based on age.
The county first received complaints that the pension system was discriminatory in 1999 and 2000, when two correctional officers lodged complaints through the U.S. Equal Employment Opportunity Commission.
The EEOC didn’t sue on the workers’ behalf until 2007, and Bennett said the EEOC’s “unreasonable delay” in bringing the lawsuit was a factor in not awarding damages.
When the complaints were first made, the county denied wrongdoing and sent information backing up its argument to the EEOC — but heard nothing for years, and all the while unwittingly racked up a potential bill of damages it might have had to pay to the affected workers, the judge noted.
“Baltimore County had reason to believe that its pension plan contribution scheme was entirely lawful prior to the determination of liability in the present case,” Bennett wrote.
The judge also noted that monetary damages haven’t been awarded in similar pension cases, and that damages aren’t required under the law that’s central to this case: the federal Age Discrimination and Employment Act.
The pension system includes all county workers except Board of Education employees, who participate in a different system. There are about 9,500 active employees and 6,000 retirees in the system.
County workers weren’t really expecting to recover any money from the case, said Norman Anderson, president of AFSCME Local 921, which represents about 700 trades workers in several county departments.
Most of the employees in his union who were hired before 2007 have since retired or moved on, Anderson said.
“I guess [the ruling] is a little sad for some,” he said.
Dave Rose, second vice president of FOP Lodge 4, which represents county police officers, said some officers were paying 2 percent more toward pensions than younger colleagues for years.
“That adds up to quite a bit of money. That’s a shame,” Rose said.
As part of the lawsuit, the county and its unions agreed earlier this year on new pension contribution rates eliminating age-based rates for all workers — including those hired before 2007.
The case had bounced around the federal court system for years between rulings and appeals, and almost made a trip to the U.S. Supreme Court. The high court refused to hear the case in 2014.
The judge’s decision this week closes the case, unless the EEOC files an appeal. Officials with the EEOC declined to comment Friday.
It also spells the likely end of a companion lawsuit. The county had sued its longtime pension adviser, Buck Consultants, in an attempt to make that company pay some or all of any damages in the pension case. Officials said the county had relied on advice from Buck Consultants, now a subsidiary of Xerox, in making decisions about the pension system for 70 years. That lawsuit was on hold while the main lawsuit was decided.
The county has since dropped Buck Consultants and now receives advice from Bolton Partners.
Meanwhile, the county lost a decision in another long-running employee lawsuit this week. The Maryland Court of Appeals ruled against the county Thursday in a case over how much police retirees had to pay for their health insurance.
Courts previously ruled the county had to pay back more than $1.6 million to retired police officers who were overcharged for their health insurance. The county fought the case for years and, at one point, County Executive Kevin Kamenetz risked being held in contempt of court for not paying the money.
The county eventually paid, but continued to fight the ruling. The money has been held in an escrow account and the union hopes the money can be distributed soon, said Rose of the FOP.
The case started in 2007 and at least 10 FOP members who were due money have died, Rose said.
County officials declined to comment on the case Friday because the lawyers hadn’t yet reviewed the ruling.
Writing for the Court of Appeals, Judge Robert N. McDonald said the county didn’t make any compelling new arguments in its latest appeal.
In his opinion, McDonald quoted “a noted philosopher in another line of work” — late baseball great Yogi Berra — saying the latest review of the case was “like deja vu all over again.”
Baltimore County will not have to pay any damages as part of a settlement of a federal age-discrimination lawsuit brought by the Equal Employment Opportunity Commission.
U.S. District Judge Richard D. Bennett ruled Wednesday that neither retroactive nor prospective monetary relief was available under the Age Discrimination in Employment Act and closed the case, which dates back to 1999.
The EEOC challenged the county’s practice of requiring older employees to contribute more to their pension plans than younger colleagues who’ve worked for the county for the same length of time in violation of the Age Discrimination in Employment Act.
Although the county changed its policy July 1, 2007 so that new hires would contribute to their pensions at a flat rate regardless of their age at the time they were hired, the contribution rates for employees hired before that date continued to be age-based, according to the consent decree signed in April.
Under the decree, Baltimore County and six unions representing county employees are enjoined from requiring employees who are at least 40 years old to contribute to their pensions at higher rates than younger employees due to their age.
The Baltimore County FOP Lodge #4 has prevailed at the Court of Appeals against Baltimore County in the retiree subsidy case. Read the decision here. The case started in September 2007 as a grievance and arbitration. The history of the case can be found under FOP Links on our website.
The County Administration has fought this case at every level and now they have been denied by Maryland’s highest court.
Now that we have the decision from Maryland’s highest court, we will be working on disseminate the money owed to the affected retirees.
This is a reminder of the anniversary date of the line-of-duty-death of Samuel Snyder on Tuesday, August 23, 2016.
In August of 1983, Corporal Samuel Snyder, a thirty-year veteran of the department, was shot by a deranged subject while responding to a call for assistance from fellow officers in Towson. Corporal Snyder died on August 23, 1983 as a result of his wounds.
Under Departmental regulations Memorial Ribbon Bars may be worn on the uniform, above all other ribbons above the badge, on the anniversary dates of Baltimore County police officers killed-in-the-line-of-duty.
Members are encouraged to honor and remember Samuel Snyder by wearing their Memorial Ribbon Bars on August 23rd of each year.
This is a reminder of the anniversary date of the Line-of-Duty Death of Lieutenant Michael Howe on August 11, 2008. Lt. Howe died as a result of suffering a fatal stroke after clearing from a barricade incident involving a murder-suicide.
Under Department Regulations, Memorial Ribbon Bars may be worn on the uniform, above all ribbons above the badge, or mourning bands may be worn on the badge on the anniversary dates of Baltimore County Police Officers killed in the line-of-duty.
Members are encouraged to honor and remember Lt. Michael Howe by wearing their Memorial Ribbon Bars or mourning bands on Thursday, August 11, 2016.
On July 14, 2016, a jury returned a verdict in favor of an employee formerly employed by Baltimore County, Maryland. The jury found that Baltimore County unlawfully terminated the employee in violation of the Americans with Disabilities Act (ADA). The jury also found that the County violated the ADA when it made undue medical inquiries and sent him for an undue medical examination. The employee was represented by Francis J. Collins.
The employee had begun working for Baltimore County’s Department of Highways as a laborer in 2006. At about the same time he was diagnosed with cancer. He was treated and prevailed in his battle with cancer. In 2007, he was again diagnosed with cancer, treated, and prevailed. He worked throughout much of his treatment.
In 2009, the employee strained his back. The County sought, in violation of the ADA, all of his medical records, including records about his battles with cancer. In 2010, the employee again strained his back. He took off several weeks of work and recovered. He was cleared to return to work. The County, however, in violation of the ADA, referred him for an evaluation not limited to his back and, instead, encompassing his battles with cancer. The County’s doctor concluded that the employee, who was doing his job successfully at the time, could not do his job. The County decided to terminate the employee for his disability or for his perceived disability. He challenged the decision. The County, however, insisted on terminating him without any effort to accommodate him or assess his ability and facilitate his continued employment. The employee engaged FJ Collins to represent him.
The employee filed a charge against the County with the EEOC. The EEOC found cause to believe the County discriminated against him. On behalf of the employee, FJ Collins filed a lawsuit against Baltimore County. The lawsuit went to trial on July 11, 2016. On July 14, 2016, the jury returned a verdict in favor of the employee. The jury awarded the employee $96,000 in back pay and $298,000 in compensatory damages for wrongfully terminating him in violation of the ADA. The jury awarded him another $6,000 in compensatory damages for unlawfully seeking his medical records and referring him to an unlawfully broad medical examination.
The verdict is a striking reminder of the importance of the ADA, which not only protects disabled employees but also protects employees perceived as disabled, and at the same time protects employee health information. The ADA is meant to enable employment and facilitate appropriate discussions to continue and safeguard employment. The ADA is meant to protect employees from unduly broad examinations and inquiries of health information by employers.
Baltimore County went too far here, inquiring too much, and terminating, not facilitating, employment for the employee.