Mon, June 10, 2013
By Steve Lash
Daily Record Legal Affairs Writer
Baltimore County has spent more than $1 million in the past year to settle claims by its police officers, firefighters and the U.S. Department of Justice, all of whom accuse the county of requiring improper medical tests and, in some cases, forcing them from their jobs based on the results.
After obtaining an ADA verdict for one county employee in April 2010, Kathleen Cahill (right) was contacted by so many would-be clients that she went looking for co-counsel. She chose Benjamin Rosenberg, who chairs a Baltimore law firm.
And the calls keep coming, said Kathleen M. Cahill, the employees’ attorney.
“A private company with good sense would have ceased this long ago,” Cahill said. “I’ve never had a defendant who was such a repeat offender.”
But Assistant County Attorney Paul M. Mayhew disputed the allegations of wrongdoing and of insensitivity to the 1990 Americans with Disabilities Act, the law bars job-related discrimination against workers with disabilities and those perceived to be disabled.
“We have always strived to comply will all federal and state laws and continue to do so” on behalf of the county’s approximately 10,000 employees, Mayhew said.
“It’s very complicated, it’s very time-consuming and very onerous to coordinate 100 percent compliance with often conflicting and overlapping statutes,” he added. “We continue to strive.”
Cahill said the claims of discrimination are nearly all the same: A county employee with an actual or perceived disability is told to go for a medical test, which the worker contends is not job related.
The ADA prohibits employers from discriminating on the basis of a real or perceived disability. The ordering of a non-job-related medical test is, in itself, a violation of the ADA, regardless of whether an adverse employment action, such as a demotion or termination follows, Cahill said.
Mayhew said the county, which admitted no wrongdoing in agreeing to the settlements, has “made mistakes, but they are just that, mistakes.
“We don’t believe that any of our processes were of themselves unlawful,” he added. “The application of our processes in a small percentage of cases has resulted in a small number of mostly technical violations of the laws.”
Cahill said she accepts as clients only those county employees who she concludes — after initial evaluations, which may include job-related medical tests — have valid ADA claims. Cahill said she tells those she turns aside that they should file claims with the EEOC to preserve their rights.
“I can’t help everybody,” Cahill said. “These are very hard cases. The fight is not for the faint of heart.”
Even so, she said, the Baltimore County litigation now constitutes much of her workload. She said she looks forward to the day when she can again have a diversified practice.
“Once you are in something like this, you just have to finish the job,” she said.
The deluge began after Cahill obtained a federal verdict for one client in April 2010.
The U.S. District Court jury awarded $225,000 to police detective William Blake, who was forced to take a fit-for-duty test after he testified on behalf of a fellow officer. Blake filed the ADA lawsuit after he was subpoenaed to testify at an appeals hearing regarding the forced retirement of Philip Crumbacher, who crashed his police vehicle while suffering a seizure behind the wheel.
Blake testified he had suffered one seizure 10 years earlier and had since performed without limitation. However, he was ordered to submit to a fitness examination the day after he testified in September 2006 and submit voluminous medical records, Cahill said.
After the Blake verdict, Cahill said, the number of Baltimore County employees contacting her became so large that she looked for help from “a big dog” — a prominent litigator with law-firm resources to assist her.
About two years ago, she joined forces with Benjamin Rosenberg, who chairs Rosenberg Martin Greenberg LLP in Baltimore.
Rosenberg said he has little employment law experience and what he does have is from the employer side. However, he is a veteran federal court litigator who recognizes when plaintiffs have strong claims.
“My first reaction was disbelief,” Rosenberg said of the continuing stream of plaintiffs after the consent decree with the Justice Department last August. “How can a government keep doing this?”
Mayhew, though, said the county has endeavored to comply with the consent decree and its call for greater compliance.
“We are working in cooperation with the Department of Justice … to fine-tune our practices so that we have the best practices possible,” he said. “We believe our processes are equal to or better than any local government in Maryland and any private employer.”
Mayhew said that since the consent decree he has reviewed for ADA compliance all requests from county supervisors that an employee submit to a fitness-for-duty examination. This level of review is not required by the consent decree, he added.
“It’s our attempt to get in front of any potential issue with regard to medical examinations and inquiries,” Mayhew said. “Those requests have always been reviewed by HR [human resources] but we have added that extra level of scrutiny by law.”
Mayhew also voiced deep concern with the Equal Employment Opportunity Commission, which helped with the Justice Department investigation, and continues to investigate alleged ADA violations.
“We do not believe that the investigations into the vast majority of these cases on the part of the EEOC have been thorough or fair,” Mayhew said. Specifically, the federal agency has not been “giving credence to documentary evidence” supplied by the county or interviewing witnesses provided by the county, he said.
Mayhew added that the county has made a formal complaint with EEOC’s inspector general.
EEOC spokeswoman Justine Lisser declined to comment on Mayhew’s allegations.
“We never talk about our investigations,” Lisser said. “We just can’t comment about specific investigations because of our confidentiality requirements.”
The county has not admitted any wrongdoing in the ADA cases it has settled.
In announcing the most recent settlement, with firefighters Donald K. Becker Sr. and Stanley P. Kuklinski and former police lieutenant Michael D. Lauenstein, the county put the figure at $107,000, which The Daily Record reported and which Cahill called “a real serious affront to the truth.”
After the settlement became final late last month, court documents revealed that the county’s total included only noneconomic damages of $20,000 per plaintiff and attorneys fees of about $47,000 for Cahill and Rosenberg.
However, the county also had agreed to pay a total of $316,484 in back pay to the three men; an immediate pension increase of $121,814 to the lieutenant; and future pension benefits of $500,000 to $750,000 to the firefighters, depending on how long they work.
That settlement followed the county’s $475,000 accord in August with the Justice Department, on behalf of 10 current, former and prospective county employees who claimed the county had engaged in a “pattern or practice” of disability discrimination by requiring medical tests that were not job-related.
The county, agreed to stop requiring physical fitness and medical tests of its employees except when “job-related and consistent with business necessity.”
The August agreement, a consent decree with the U.S. Justice Department, did not foreclose additional ADA lawsuits against the county.
Sixteen other claims have now been cleared by the Equal Employment Opportunity Commission for litigation and 10 others have been filed with the EEOC, Cahill said.
Another ADA-related claim of forced retirement, by county road-maintenance worker Wlliam Galanti, is pending in U.S. District Court in Baltimore.
“I don’t discern a change in attitude since the Department of Justice issued the consent decree, to say the least,” Cahill said. “I haven’t seen anything like this from any other government.”