motion for investigation into allegations of misconduct by attorneys under local rule 705a new...

7/27/2019 MOTION FOR INVESTIGATION INTO ALLEGATIONS OF MISCONDUCT BY ATTORNEYS UNDER LOCAL RULE 705A New

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND

BRIAN CHARLES VAETH

Plaintiff,

vs.

Martin OMalley, Governor of Maryland, AnthonyBrown,Lieutenant Governor of Maryland,Mayor Stephanie Rawlings-Blake, City CouncilPresidentBernard Jack: Young, Councilman NO. __________James B. Kraft(D-1), CouncilmanBrandon Scott(D-2), CouncilmanRobert Curran (D-3), 18 U.S.C. 241 [Conspiracy

CouncilmanBill Henry (D-4), Councilwoman Against Rights]Rochelle Rikki Spector (D-5), CouncilwomanSharon Green Middleton (D-6), CouncilmanNick 18 U.S.C. 242 [DeprivationMosby (D-7), CouncilwomanHelen Holton (D-8), of Rights]CouncilmanWilliam Pete Welch (D-9),CouncilmanEdward Reisinger (D-10), Councilman 18 U.S.C. 402 [ContemptsWilliam Cole (D-11), CouncilmanCarl Stokes Constituting Crimes](D-12), CouncilmanWarren Branch (D-13),Councilwoman Mary Pat Clarke (D-14), in their 18 U.S.C. 1001 [Fraud andofficial and individual capacities, False Statements]

18 U.S.C. 1519 [Obstructionand

18 U.S.C. 1621 [Perjury]

Board of Trustees, Fire & Police Employees 18 U.S.C. 1622 [SubornationRetirement System of Baltimore City of Perjury]

Peter E. Keith, Vice Chairman,Joan M.Pratt, CPA, Harry E. Black, John P. Skinner, 18 U.S.C. 1623 [FalseDickson J. Henry, Frank B. Coakley, Benjamin Declarations Before GrandF. DuBose Jr., Victor C. Gearhart, Robert A.Haukdal, William "Ray" Hudson, Paul S. 18 U.S.C. 207 [Concealment,DeSimone, Sharon Garcia, Claims Administrator Removal, Or Mutilationand former members Frederick McGrath, Hearing Generally]Examiner, Bd. Chairman Stephan G. Fugate, and

Edward Heckrotte, in their official and individualcapacities,

and
http://www.baltimorecitycouncil.com/District1/default.htmhttp://www.baltimorecitycouncil.com/District1/default.htmhttp://www.baltimorecitycouncil.com/District1/default.htm


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The Baltimore City Board of Estimates MayorStephanie Rawlings-Blake,Board PresidentBernard Jack: Young,Board SecretaryJoanM. Pratt, andBoard members City SolicitorGeorge Nilson,Director of Public Works

Alfred H. Foxx, Jr.,in their official andpersonal capacities

and

The Baltimore City Board of Ethics Chairperson

Linda B. (Lu) Pierson, Dawna M. Cobb,

Guy E. Flynn, Peggy E. Wall, Jennifer

Burdick,DirectorMr. Avery Aisenstark, andDeputy Ethics DirectorThaddeus Watulak, intheir official and personal capacities

and

Chief of the Baltimore City Fire DepartmentJames Clack,Deputy ChiefRod Devilbiss, Jr.,Medical Director Public Safety InfirmaryJames Levy, MD,in their official and personalcapacities

and

William Taylor,Vice President IAFF,Rick Hoffman, President IAFF Local 734,Former President IAFF Local 734 RobertSledgeski, Former Local 734 Vice PresidentJerome Robusto, former Local 734 VicePresident David Cox

and

George Nilson City Solicitor, David RalphDeputy Solicitor, Elena DiPietro Chief,Legal Advice and Opinions Practice Group,Thomas Corey Chief, Minority and

Women's Business Opportunity Office,Carolyn A. Espy Chief, CollectionsPractice Group, Gary Gilkey, Chief,Labor& Employment Practice Group, Sandra R.GutmanChief, Land Use Practice Group,Mark H. GrimesChief Legal Counsel,


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Legal Affairs Practice Group, Richard E.Kagan Chief, Corporate Practice Group,Kurt Heinrich Central Bureau of

Investigation, Matthew Nayden Chief,Litigation Practice Group, in their official

and personal capacities

and

Mr. Douglas Gansler,Attorney General ofMaryland, in his official and personal capacity

and

Mr. Gregg Schellenberger, States Attorney forBaltimore City, Marylandin his official and personal

capacity

Defendants

-oOo-

MOTION FOR INVESTIGATION INTO ALLEGATIONS OF MISCONDUCT BY

ATTORNEYS UNDER LOCAL RULE 705

Plaintiff requests an investigation into alleged attorney misconduct under U.S. District

Court for the District of Maryland Local Rule 705. Disciplinary Proceedings, and brings to the

attention of a judge of this court the need for an investigation. Plaintiff's original complaint, upon

which this case arises, is number RDB-08-708 in the U.S. District Court for the District Court of

Maryland and contains a long pattern and history of numerous allegations of misconduct by

numerous attorneys in the Baltimore City Solicitors Office. Plaintiff's allegations against these


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attorneys constitute an extensive pattern and history of known misconduct dating back to 1996

and ongoing till present.

The multitude of alleged known and unknown fraudulent schemes and the active

participation by these attorneys, appointed officials, union representatives, and agents in

furtherance of their scheme to defraud not only municipal employees who become disabled in

their performance of their duties of their rightful disability retirement pensions, but the United

States of America, only causes their scheme of fraud to be further perpetrated on the Social

Security Administration, (hereinafter referred to as SSA).

The United States Social Security Administration (SSA) is an independent agency of the

United States federal government that administers Social Security, a social insuranceprogram

consisting ofretirement, disability, and survivors' benefits. To qualify for these benefits, most

American workers pay Social Security taxes on their earnings and future benefits are based on

the employees' contributions. Baltimores Police Officers, Firefighters, and Paramedics are not

eligible to receive benefits from the SSA, due to the fact that they receive retirement benefits

from the Fire and Police Employees Retirement System of Baltimore City. SSA administers the

Supplemental Security Income (hereinafter referred to as SSI) program, which is needs-based,

for the aged, blind, or disabled. This program was originally called by separate names, Old Age

Assistance (originally Title I of the Social Security Act of 1935), and Disability Assistance

(added in 1946). In 1973, these assistance programs were renamed and reassigned to SSA. SSI

recipients are paid out of the general revenue of the United States of America. In addition, some

states pay additional SSI funds. As of this writing, 7 million people are covered by SSI. When a

municipal employee is denied of their rightful disability pension arbitrarily and capriciously by

the Board of Trustees for the Fire and Police Employees Retirement System of Baltimore City,
http://en.wikipedia.org/wiki/United_Stateshttp://en.wikipedia.org/wiki/Independent_agencies_of_the_United_States_governmenthttp://en.wikipedia.org/wiki/Federal_government_of_the_United_Stateshttp://en.wikipedia.org/wiki/Social_Security_%28United_States%29http://en.wikipedia.org/wiki/Social_insurancehttp://en.wikipedia.org/wiki/Retirementhttp://en.wikipedia.org/wiki/Supplemental_Security_Incomehttp://en.wikipedia.org/wiki/Supplemental_Security_Incomehttp://en.wikipedia.org/wiki/Retirementhttp://en.wikipedia.org/wiki/Social_insurancehttp://en.wikipedia.org/wiki/Social_Security_%28United_States%29http://en.wikipedia.org/wiki/Federal_government_of_the_United_Stateshttp://en.wikipedia.org/wiki/Independent_agencies_of_the_United_States_governmenthttp://en.wikipedia.org/wiki/United_States


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the employees only option is to apply for SSI benefits. These benefits are the responsibility of

the Board of Trustees for the Fire and Police Employees Retirement System of Baltimore City

and not the United States of America.

Under *Local Rule 704, Disciplinary Proceedings:

1. Allegations of Misconduct

a. Referral for Investigation When allegations of misconduct which, if substantiated,

would warrant discipline of an attorney shall come to the attention of a Judge of this Court,

the judge shall refer the matter to the Court's Disciplinary Committee.1

Additionally, under Local Rule 704. Rules of Professional Conduct, this court shall apply

the Rules of Professional Conduct as they have been adopted by the Maryland Court of Appeals.

The attorneys employed by the Baltimore City Solicitors Office are licensed by the

Maryland Bar and practice in both the Maryland federal courts and Maryland State Courts.

These attorneys represent a cross section of the highest level federal law enforcement

attorneys in the State of Maryland, the highest level State law enforcement attorneys in the

State of Maryland and attorneys of the most powerful and politically connected law firms in

the State of Maryland.

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR

RULE 705 DISCIPLINARY PROCEEDINGS

The Federal judges and courts in the state of Maryland have distinguished themselves by

actively investigating and enforcing the Maryland Rules of Professional conduct. This is

evidenced in the case of convicted lobbyist, Bruce C. Bereano a politically well connected

1Rule 705 (Local Rule, pg.66, 67, 68 U.S. District Court for the District of Maryland)

Disciplinary Proceedings.


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Maryland attorney who was barred from practicing law in the District of Columbia and in the

federal courts but won a reprieve to practice law at the Maryland State level because of his

association with a Maryland State judge.

The primary concerns in a disciplinary proceeding are to uphold the highest standards of

professional conduct and to protect the public from imposition by the unfit or unscrupulous

practitioner ."Attorney Grievance Comrn'n v. Green, 278 Md. 412,414,365 A.2d 39,40(1976),

quoting Maryland State bar Ass'n v. Boone,225 Md. 420,425,258 A.2d 428(1969).

Deceiving a court constitutes a most serious and direct interference with the administration

of justice and harms to clients, the Bar and the public. Truth and candor are essential to our

system of justice and the judiciary must play a key role in deterring fraud. If deception remains

unchallenged the public's perception of the legal system the judiciary and our profession will

suffer. Only by strictly enforcing rules against deception and by taking initiative against violators

will the judiciary earn the respect of the public and help improve the justice system. A court's

failure to take action against deception, whether it is by failing to report the misconduct to a

disciplinary agency or by failure to invoke contempt power, tacitly encourages this type of

professional misbehavior.

This memorandum highlights the court's responsibility to enforce all applicable

disciplinary rules and presumes that the judiciary will insure that criminal prosecution for

perjury, obstruction of justice and other similar violations will be pursued when a lawyer's

conduct demands it.

Truth and candor are synonymous with justice, and honesty is an implicit characteristic of

the legal profession. Thus, although rules proscribing fraud, deceit, deception, and dishonesty are

somewhat superfluous, most jurisdictions have provisions which impose obligations to be


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truthful and which prohibit misleading a court. For example, Canon 1 of the ABA Model Code

of Professional Responsibility prohibits a lawyer from engaging in conduct involving dishonesty,

fraud, deceit, or misrepresentation that is prejudicial to the administration of justice (DR 1-

102(A). the ABA Model Rules of Professional Conduct Rule 3.3 specifically prohibits an

attorney from knowingly making a false statement of fact or law to a court and from misleading

a court by omission. Rule 3.3 also prohibits an attorney from offering evidence he knows is false.

The professional obligation to report and act upon deception is found in DR 1-103. This

very fundamental ABA Code provision requires a lawyer or judge having unprivileged

knowledge of a violation of the ABA Code to report it to a tribunal or other authority

empowered to investigate or act upon such violation. Similarly, the ABA Code of Judicial

Conduct Canon 3B (3) states that "a judge should take or initiate appropriate disciplinary

measures against a lawyer for unprofessional conduct of which the judge may become aware."

The Judiciary has a clear professional responsibility to report and take action against attorneys

who deceive the court. Regrettably, current case law reflects little judicial action in this critical

area. It is clear that the judiciary must do more to curb deception. In ABA Special Committee on

Evaluation of Disciplinary Enforcement Problems and Recommendations in Disciplinary

Enforcement, it is noted that lawyers and judges are reluctant to report instances of misconduct.

The publication states:

If individual attorneys and judges shirk that responsibility, permitting

wrongdoers in their midst to escape disciplinary action unless the circumstances

are reported by laymen, the public may conclude that 'self policing' is in reality

'self protection'. The failure of attorneys and judges to report instances of

misconduct, while undoubtedly the result of the almost universal reluctance to


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inform hampers effective enforcement and does a disservice to the bench, the bar,

and the public."

In the cases reported in this study the judge usually took action against the attorney,

whether by reporting the action to the attorney, or by directly imposing a sanction, or by citing

for contempt. However there are cases in which the judge either took no action or merely

imposed a fine or contempt citation without making a referral to the disciplinary agency. It must

be emphasized that a contempt citation by the judge is not a sufficient disciplinary mechanism. It

must be joined with a complaint to and an investigation by a separate body to discipline

attorneys. A judge should refer the matter to the appropriate disciplinary body regardless of any

independent investigation and sanction imposed by a judge himself.

One of the chief reasons for mandating a referral to the appropriate disciplinary authority

is the fact that the offending attorney may, and probably is, engaging in the same type of in-

court misconduct in other courts. The disciplinary authority is the only agency which can detect

such a course of conduct and properly deal with it.

A portion of the evidence and documents this Court will need to initiate an investigation

concerning the allegations of attorney misconduct and who would control these key pieces of

documentary evidence are as follows. These documents will clearly indicate the active

participation and knowledge in furtherance of the multitude of fraudulent schemes by the

attorneys only to defraud plaintiff but the following victims:

1. The United States of America2. The Plaintiff3. The US District Court4. The Circuit Court for Baltimore City5. The members of the Fire and Police Employees Retirement System of Baltimore City


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6. The employees of the City of Baltimore7. The Office of the Inspector General for Baltimore City8. The US Social Security Administration9. The US Department of Justice

THESE ATTORNEYS HAVE A DUTY TO COMPLY WITH ANY REQUEST THISCOURT MAKES FOR THESE DOCUMENTS UNDER THE MARYLAND RULES

OF PROFESSIONAL CONDUCT.

RULE 3.3 CANDOR TOWARD THE TRIBUNAL

(a)A lawyer shall not knowingly :(1) make a false statement of material fact or law to a tribunal;

(b) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid

assisting a criminal or fraudulent act by the client;

SAMPLE OF DOCUMENTS NEEDED BY THIS COURT TO

INVESTIGATE ATTORNEY MISCONDUCT

1. The record, as submitted before the Panel of Hearing Examiners for the Fire and PoliceEmployees Retirement System of Baltimore City, June 2003.

2. Several Articles published by the Baltimore Sun. These reports are as follows:a. http://articles.baltimoresun.com/1996-08-03/news/1996216036_1_maybin-mercy-

medical-calvert-maris-mercy-medical

b. http://articles.baltimoresun.com/1997-01-08/news/1997008017_1_sisters-of-mercy-stella-maris-mercy-medical

c. http://articles.baltimoresun.com/1997-02-25/business/1997056062_1_mercy-schmoke-city-police

d. http://articles.baltimoresun.com/1997-06-24/news/1997175091_1_mercy-medical-stella-maris-mercy-ridge


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e. http://articles.baltimoresun.com/1998-08-21/business/1998233003_1_mercy-retirement-community-entrance-feedical-stella-maris-mercy-ridge

f. http://articles.baltimoresun.com/2002-12-17/news/0212170322_1_liberto-compensation-system-injured-workers

3. The record presented to this Court and evidence submitted to this Court in case numberRDB-08-708.

4. Various complaints that have been filed Local, State, and Federal agencies related to thisaction.

5.

The unlawful findings of fact of the Hearing Examiner for the Panel of Hearing

Examiners for the Fire and Police Employees Retirement System of Baltimore City, June

2003.

MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF PLAINTIFFS

DEMAND FOR AN INVESTIGATION INTO THE DISCRIMINATORY ACTIONS OF

THE CITY OF BALTIMORE TO ULTIMATELY BRING CRIMINAL CHARGES

BEFORE A FEDERAL GRAND JURY TO INDICT RESPONDENTS FOR FRAUD,

OBSTRUCTION OF JUSTICE, CRIMINAL CONTEMPT, PERJURY, AND

MALFEASANCE OF OFFICE AMONG OTHERS, AND TO INVOKE PROTECTIONS

UNDER PROVISIONS FOUND IN THE WHISTLEBLOWERS ACT

AUTHORITIES

Age Discrimination in Employment Act of 1967, 81 Stat. 602, 29 U.S.C. 621 et seq. (1976 ed.and Supp.V).

Baltimore City Code Articles 11, 12, & 22

Baltimore City Charter Subtitles 12 Central Bureau of Investigation, and 22-26 Department ofLaw.

Baltimore City Civil Service Commission Rule 57.

Baltimore City Fire Department Manual of Procedures, Sections 106-2, 106-3, 115-5, 301-1,302-1, 327-3, 328, 328-1, 329-3, 366-1, 366-2, , 366-3, 366-3-1, & 366-6.


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H.R.Conf.Rep. 95-950, p. 12, U.S.Code Cong & Admin.News 1978, 504, 534

H.R. 1746, the Equal Opportunity Act of 1972, 118 Cong.Rec. 7166, 7167 (1972)

Maryland Local Government Tort Claims Act

Maryland Rules of Civil Procedure, 2-535

Memorandum of Understanding 2002-2003, the Union of the International Association ofFirefighters for Baltimore City and the Mayor and City Council of Baltimore City.

National Labor Relations Act

NFPA 1582 Physical StandardsRule 55, 56, 57, & 58 of the Civil Service Commission of Baltimore City

S.Rep.No. 92-415, p. 37 (1971), U.S.Code Cong. & Admin.News 1972, p. 2137

Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. 2000e et seq.(1970 ed.)

42 USC 1985 Conspiracy to interfere with civil rights.

CASES CITED

Air Line Stewards and Stewardesses Assn. v. TWA, 630 F.2d 1164, 1168-1169 (1980).

Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974)

Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)

Ashton v. Brown, 339 Md. 70, 107- 08, 660 A.2d 447, 465-66 (1995)

Bartens v. City of Baltimore, 293 Md. 620, 626, 446 A.2d 1136, 1138-39 (1982)

Biscoe v. Baltimore City Police Dept, 96 Md. App. 1, 7, 623 A.2d 666, 670 (1993)

Cannon v. University of Chicago, 441 U.S. 677, 686, n. 7, 99 S.Ct. 1946, 1952,

Carlile v. South Routt School District Re 3-J, 652 F.2d 981 (CA10 1981)

Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (CA5 1981);
http://www.altlaw.org/cite/630+F.2d+1164http://www.altlaw.org/cite/415+U.S.+36http://www.altlaw.org/cite/441+U.S.+677http://www.altlaw.org/cite/652+F.2d+981http://www.altlaw.org/cite/640+F.2d+584http://www.altlaw.org/cite/640+F.2d+584http://www.altlaw.org/cite/652+F.2d+981http://www.altlaw.org/cite/441+U.S.+677http://www.altlaw.org/cite/415+U.S.+36http://www.altlaw.org/cite/630+F.2d+1164


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Downey v. Collins, 866 F.Supp. 887, 889 n. 7 (D.Md.)

Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 240, 97 S.Ct. 441, 449, 50 L.Ed.2d427 (1976)

Grubbs v. Prince Georges County, 267 Md. 318, 325, 297 A.2d 754, 758, (1972)

Hart v. J. T. Baker Chemical Corp., 598 F.2d 829 (CA3 1979)

Heron v. Strader, 361 Md. 258, 270, 761 A.2d 56, 62 (2000)

Jackson v. Board of County Commissioners, 233 Md. 164, 167, 195 A.2d 693, 695 (1963)Kerblum v. Schnieder, 609 SO. 2d 138, 139 (FL. 4th DCA 1992)

Laffey v. Northwest Airlines, Inc., 185 U.S.App.D.C. 322, 567 F.2d 429 (1976)

Leake v. University of Cincinnati, 605 F.2d 255 (CA6 1979)

Loewinger v. Prince Georges County, 266 Md. 316, 292 A.2d 67 (1972)

Madore v. Baltimore County, 34 Md. App. 1994). 340, 344, 367 A.2d 54, 57 (1976)

McArthur v. Southern Airways, Inc., 569 F.2d 276 (CA5 1978) (en banc)

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668(1973)

National Labor Relations Board, see NLRB v. Local 264, Laborers' Int'l Union, 529 F.2d 778,781-785 (CA8 1976)

NLRB v. A. E. Nettleton Co., 241 F.2d 130, 133 (CA2 1957)

NLRB v. Itasca Cotton Mfg. Co., 179 F.2d 504, 506-507 (CA5 1950)

Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979)

Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S.Ct. 800, 813, 63 L.Ed.2d36 (1980)

Shumate v. NLRB, 452 F.2d 717, 720 (CA4 1971); NLRB v. A. E. Nettleton Co., 241 F.2d 130,133 (CA2 1957)

Stone v. City of Mount Vernon, 118 F.3d 92 (1997)

Teamsters v. United States, 431 U.S. 324, 366, 97 S.Ct. 1843, 1870, 52 L.Ed.2d 396 (1977)
http://www.altlaw.org/cite/429+U.S.+229http://www.altlaw.org/cite/598+F.2d+829http://www.altlaw.org/cite/567+F.2d+429http://www.altlaw.org/cite/605+F.2d+255http://www.altlaw.org/cite/569+F.2d+276http://www.altlaw.org/cite/411+U.S.+792http://www.altlaw.org/cite/529+F.2d+778http://www.altlaw.org/cite/241+F.2d+130http://www.altlaw.org/cite/179+F.2d+504http://www.altlaw.org/cite/441+U.S.+750http://www.altlaw.org/cite/444+U.S.+572http://www.altlaw.org/cite/452+F.2d+717http://www.altlaw.org/cite/241+F.2d+130http://www.altlaw.org/cite/431+U.S.+324http://www.altlaw.org/cite/431+U.S.+324http://www.altlaw.org/cite/241+F.2d+130http://www.altlaw.org/cite/452+F.2d+717http://www.altlaw.org/cite/444+U.S.+572http://www.altlaw.org/cite/441+U.S.+750http://www.altlaw.org/cite/179+F.2d+504http://www.altlaw.org/cite/241+F.2d+130http://www.altlaw.org/cite/529+F.2d+778http://www.altlaw.org/cite/411+U.S.+792http://www.altlaw.org/cite/569+F.2d+276http://www.altlaw.org/cite/605+F.2d+255http://www.altlaw.org/cite/567+F.2d+429http://www.altlaw.org/cite/598+F.2d+829http://www.altlaw.org/cite/429+U.S.+229


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United Air Lines, Inc. v. Evans, 431 U.S. 553, 555, n. 4, 97 S.Ct. 1885, 1887, n. 4, 52 L.Ed.2d571 (1977)

Washington v. Glucksberg, 521 U.S. 702, 719 (1997)

Westfarm Assocs. v. Washington Suburban Sanitary Commn, 66 F.3d 669, 676 (4th Cir. 1995)Williams v. Maynard, 359 Md. 379, 380-81, 754 A.2d 379, 380 (2000). See 5-303 (b)

STATEMENT OF PLAINTIFF

Brian Charles Vaeth, Plaintiff pro se, submits this Memorandum of Points and Authorities in

Support of the Plaintiffs demand fora GRAND JURY INVESTIGATION into the

discriminatory actions of the City of Baltimore to ultimately bring a complaint before a Federal

Grand Jury for an indictment for the alleged charges contained in this complaint including but

not limited to fraud, obstruction of justice, collusion, tortious interference, negligence, perjury,

and malfeasance of office, among others, and Plaintiff respectfully invokes the protections found

under provisions the Whistleblowers Act. Plaintiff, upon personal knowledge as to the

Respondents and their acts, and the contents of the documents referred to herein, and upon

information and belief as to all matters, hereby brings this request for an investigation into the

serious nature of the allegations made against Respondents. Further, as the above named

officials and affiliates have been shown, by prior investigations of unlawful conduct, to have

engaged in intentional and malicious acts, in retaliation against members of the Baltimore City

Fire Department for reporting the unlawful behavior of Respondents, Plaintiff intends to seek

damages for these retaliatory acts.

RELATED CASES
http://www.altlaw.org/cite/431+U.S.+553http://www.altlaw.org/cite/431+U.S.+553


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The details surrounding Plaintiffs claim are a result of previous claims filed in the Circuit

Courtfor Baltimore City, case numbers 24C00005120, 24C03007014, 24C07009752, which were

an appeal of an administrative agencys unlawful determination of the denial for retirement

benefits from the Fire & Police Employees Retirement System of Baltimore City and the

manner in which the proceedings were conducted. Plaintiff also filed claims in the United States

District Court for the District of Maryland, case numbers RDB-08-708, US Court of Appeals

case number 09-2056 and WDQ-10-0182, Court of Appeals case number 11-2122. The United

States District Court claims were brought pursuant to the Americans with Disabilities Act of

1990, as amended 42 U.S.C. sec. 12101 et seq., the Rehabilitation Act of 1973, as amended, 29

U.S.C. sec. 701 et seq. (Rehabilitation Act), and the 14th Amendment to the Constitution for

allegations of the denial of due process and equal protection under federal, as well as, Maryland

State laws.

JURISDICTION STATEMENT

Since United States District Court claims were brought pursuant to the Americans with

Disabilities Act of 1990, as amended 42 U.S.C. sec. 12101 et seq., the Rehabilitation Act of

1973, as amended, 29 U.S.C. sec. 701 et seq. (Rehabilitation Act), and the 14th Amendment to

the Constitution for allegations of the denial of due process and equal protection under Federal,

as well as, Maryland State laws causing Plaintiffs employment to be terminated without cause,

the United States District Court has original jurisdiction over this claim. Because the allegations

contained in this complaint occurred as a result of the prior proceedings in the US District Court,

to which the allegations aforementioned are charged against Respondents and which are fully


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disclosed herein, this agency has jurisdiction to investigate this claim and is brought forth under

federal and Constitutional laws.

The Fourteenth Amendment prohibits the state from depriving any person of life,

liberty, or property without due process of law. The Court has long recognized that the

Due Process Clause guarantees more than fair process. Washington v. Glucksberg,

521 U.S. 702, 719 (1997).

STATEMENT OF CLAIM & ARGUMENT

Even the City realizes that controversies in employment exist. So much so that the issue is

addressed in the Baltimore City Code, as follows:

The City Council finds that unresolved disputes involving employees in the

municipal service are injurious to the public, the municipality, and municipal

employees. Therefore, adequate means should be provided for preventing controversies

between the municipality and its employees and for resolving them when they occur.2

The Baltimore City Code further mandates that:

2MUNICIPAL LABOR RELATIONS ART. 12 SUBTITLE 1

DEFINITIONS; GENERAL PROVISIONS 1-2. Findings and policy.(a) Preventing and resolving controversies.


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Because the paramount interest of the public and the nature of municipal

governmental processes make it necessary to impose special limitations upon public

employment, it is incumbent upon the municipality to provide orderly procedures for

the participation by municipal employees and their representatives in the formulation

of personnel policies and plans, to insure the fair and considerate treatment of

municipal employees, to eliminate employment inequities, and to provide effective

means of resolving questions and controversies with respect to terms and conditions of

employment, at the same time insuring that the public health, welfare, and safety will

be at all times maintained.

3

To ensure that the public health, welfare, and safety at all times are maintained, the

Baltimore City Code instructs:

To that end, it is necessary in the public interest that the municipal officials,

municipal employees, and their representatives, shall enter into negotiations with

affirmative willingness to resolve grievances and differences.4

Due to Respondents continued failure to act according to the aforementioned provisions of the

Baltimore City Code, Plaintiff respectfully submits this complaint alleging fraud and obstruction

of justice claims against the above named Respondents.

HISTORY

Plaintiff was appointed as a Baltimore City Firefighter in 1993. On August 2, 1996, while in the

performance of those duties, assisting in interior firefighting operations at the location of a four


DEFINITIONS; GENERAL PROVISIONS 1-2. Findings and policy.(b) Fair treatment of employees.


DEFINITIONS; GENERAL PROVISIONS 1-2. Findings and policy.(c) Cooperative efforts.


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story office building in the 400 block of Calvert Street in downtown Baltimore City, he suffered

a disabling injury. Heavy smoke and fire conditions were evident upon the arrival of the first unit

on the scene of this incident, Truck Company #1, his assigned unit. (The Record as presented

before the Panel of Hearing Examiners for the F&PERS.) He entered the building to perform a

primary search for trapped and injured occupants when the fourth floor suddenly flashed over.5

The force of the simultaneous combusting of the fourth floor contents hurled him toward the

stairwell. He could not regain a solid footing because of the advancing engine companys hose-

lines being put in place to initiate an attack on the seat of the fires origin and as a result, he fell

through the stairway, approximately 40 feet, landing on his back. Plaintiff was wearing his self

contained breathing apparatus, or SCBA, which is an assembly that consists of a back-plate that

supports a container of compressed breathing air. The SCBA was a contributing factor in the

causation of his injury. Members of other companies were entering the building to assist in

suppression of the fire and immediately removed him from the area. The force of the flashover

caused the separation of the impact cap from the outer shell of his helmet and demonstrates that

he was subjected to very extreme forces. These two components are not designed to separate

under normal firefighting conditions. Emergency Vehicle Driver, Richard Bisasky and

5Flashover is one of the most-feared phenomena among firefighters with temperatures reaching 1500degrees. Firefighters are taught to pay much attention to recognize flashovers and avoid backdrafts. Forexample, they have certain routines for opening a closed door in a building on fire, such as sittingbeside the door instead of in front of it, and to be ready to fight shooting flames. Despite superiorprotective gear, a firefighterhas less than two seconds to evacuate a room that has a flashover. Theinstantaneous eruption into flame generates a tremendous amount of heat, smoke, and pressure with

enough force to push beyond the room of origin through doors and windows. The combustion processthen speeds up because it has an even greater amount of heat to move to unburned objects. Flashover isa critical stage of fire growth for two reasons. First, no unprotected living thing in a room whereflashover occurs will survive and the chance of saving lives drops dramatically. Second, flashovercreates a huge jump in the rate of combustion, and a significantly greater amount of water is needed toreduce the burning material below its ignition temperature. A post-flashover fire burns hotter andmoves faster, requires more resources for fire attack, and compounds the problems of search and rescue,exposure protection, and containment.
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Lieutenant Gerald Hughes, both assigned to Truck Company 1, were immediate witnesses to this

incident. Despite this injury, he refused medical treatment, not knowing the seriousness of it. Fire

fighters experience all types ofinjuries, among these are back injuries that result in the pulling

of the muscles and are relatively minor. Plaintiff felt pain similar to that type of injury, as he has

experienced on several different occasions and considered it a typical muscle pull. He was

examined by paramedics of the Baltimore City Fire Department and demonstrated extreme high

blood pressure, typical of surviving an event such as he did and was held by the paramedics until

it returned to an appropriate level. He was released from the medic unit and rejoined the

members of Truck Company 1 to perform overhaul operations. Plaintiff performed extremely

strenuous work as overhauling is a process where all of the affected areas of fire are completely

removed of all contents and piled up on the exterior of the building. The incident escalated to

five alarms due to the rapid advance of the fire and the extreme outside temperatures exceeding

105 degrees. He worked the remainder of his shift and experienced extreme pain in the area of

this perceived muscle pull again the following day. He was taken to the hospital and diagnosed

with herniated discs, with compression on the nerve roots. Plaintiff had surgery and returned to

the full range of his duties within three months.

Plaintiff was eventually determined by PSI to be unable to perform his duties upon a

recurrence of this injury in March of 1999. This is within 5 years of the date from which the

original injury occurred. A copy of an Employee Incident Report has never been submitted by

Defendants associated with this injury and is required by law. In that incident, he experienced

extreme pain while operating an 85 foot elevated platform in the performance of his duties,

assisting other members of Truck Company #1 with aerial operating procedures. He was

transported to the Mercy Hospital Emergency Room and seen by Baltimore City Fire Dept.


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physicians where his pain was controlled. This incident was determined to be a Non Line of

Duty Injury at that time, despite the recurrence of an injury that was suffered in the Line of Duty.

An M.R.I. or Magnetic Resonance Imaging scan was performed the following day which

demonstrated a further herniation of the L4 vertebral disc. This was not determined to be

impinging on the nerve roots and was not seen as the reason for this occurrence of pain. Plaintiff

sought treatment from his physician, Dr. John Dean Rybock, who performed the initial surgery

on his back in 1996. Another surgery was performed to ascertain his complaints of during

which, it was determined, Dr. Rybock would have to excise the accumulation of scar tissue,

resulting from the first surgical procedure for herniations of the L4-5, S1 vertebral discs. The

scar tissue was impinging on the nerve roots, not evident on the MRI scans, in the base of the

spinal cord causing his pain and the interruption of his being able to control his bladder function.

The MRI only showed the progression of the abnormalities of the herniated disc, and was not

enhanced to demonstrate the accumulation of the tissue or specifically, the impingements on the

nerve roots. The contrasting solution required to be ingested prior to the commencement of the

scan did not enhance these areas; therefore it would not appear on the scan. The only way to

ascertain whether he was justified in his continuing complaints of back pain was to perform an

exploratory procedure. Because the scar tissue accumulation was a result of the work related

injury and the subsequent need to have surgery, Plaintiff challenged the Non Line of Duty

determination to the Civil Service Commission, which was properly designated to be a

recurrence of the Line of Duty injury, directly pursuant to that challenge. It provides for a longer

period of time to recover from an injury that occurs while in the Line of Duty than the time

afforded for an injury that isnt work related. A post surgical infection ensued, seriously

complicating Plaintiffs recovery. Despite his complaints, as demonstrated in the evidence, of


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extreme pain that was not typical of the recovery experienced from the original surgery, this post

surgical infection went undiagnosed by both the Plaintiffs physician and the Fire Department

from March until August of 1999. Plaintiff experienced extreme pain and paralysis as a result of

this infection until he was admitted to the hospital in August of 1999 for treatment. He remained

in the hospital for rehabilitation and continued antibiotic therapy upon his release. During this

time, on June 16, 1999, Plaintiff was determined by Fire Department physician to be unable to

perform the duties of a firefighter for the City of Baltimore. This decision was rendered without

providing him with an opportunity to recover from the surgery and post operative infection prior

to the expiration of 1 year, the time allowed for recovery from Line of Duty injuries. A

determination was not to be considered until the expiration of the one year time, or until March

23, 2000. Evidence demonstrates a prejudicial determination that Plaintiff was prescription drug

dependent and was seeking medication by the employers medical representative, the

departments physician Dr. Paula Lyons of PSI, before the diagnoses of the post operative

infection. As a result of the post surgical infection, Plaintiff has been diagnosed with

Leukopenia.6 Further discovery will support this assertion of this disease that was caused by the

occurrence of his occupational injury. This would qualify as an occupational disease, as it was

contracted as the result of an occupational injury and these diseases are known to be slow and

insidious in its approach. An individual suffering from an occupational disease can seek

compensation for his or her condition under workers' compensation statutes or such federal

6Leukopenia - Definition - A low white blood cell count, or leukopenia, is a decrease in disease-fightingcells (leukocytes) circulating in your blood. The benchmark for a low white blood cell count may varyslightly among medical practices. A low white blood cell count in adults is generally defined as fewerthan 3,500 white blood cells per microliter of blood. A low white blood cell count in children varies withage and sex. There are several subtypes of white blood cells, each with a different disease-fightingactivity. If you have a low white blood cell count, you most likely have a decrease in only one type. Arelated laboratory test determines the percentage of each type of white blood cell in a sample.


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legislation as the Black Lung Benefits Act of 1972, 30 U.S.C.A. 901 et seq. Worker's

compensation statutes typically require that the worker contract the disease during the course of

employment; that the disease be peculiar to the worker's job by virtue of how it is caused and

manifested or how job conditions result in a particular hazard, unlike employment in general;

and that there be a substantially greater risk of contracting the disease or condition on the job in a

different, more serious manner, than in general public experiences.

Retirement was forced upon Plaintiff, despite his physicians opinion and ultimately,

disability benefits were not awarded in his favor. A less favorable award of limited disability

benefits was awarded, of which Plaintiff believed that if he was not allowed to perform his duties

because of an injury that was suffered in the Line of Duty, and the recurrence of scar tissue

resulting from the first surgical procedure that is a reflection of a Line of Duty injury, he

deserved and was eligible for a retirement benefit reflective of benefits for the Line of Duty

injury. He immediately filed an appeal to the Circuit Court for Baltimore City, asserting that the

decision was arbitrary, capricious, and illegal due to an error in the administrative judges

finding of fact. Plaintiff also filed a request for reinstatement to the Baltimore City Fire

Department, which was granted in January of 2001. Pursuant to this reinstatement, he did not

pursue the appeal to the Circuit Court for Baltimore City. The error made is evidenced in the

record as submitted to the administrative hearing. The City Solicitors Office asserts that Plaintiff

abandoned this appeal. This is not true.

Upon the occurrence of Plaintiffs reinstatement, relating to the aforementioned appeal,

Former Chief William Goodwin acknowledged that he was ordered to fire him. This should be

sufficient evidence to support Plaintiffs contention that Respondents actions were calculated to

deny him of his rightful pension and that their actions continue until this day.
http://www.answers.com/topic/course-of-employmenthttp://www.answers.com/topic/course-of-employmenthttp://www.answers.com/topic/course-of-employmenthttp://www.answers.com/topic/course-of-employment


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As stated throughout filings to the Court, Plaintiff suffered recurrences of this injury in

2001 and 2002. Several incidents occurred while he was performing his duties and the final

occurrence that ultimately precluded him from returning to work, did not happen while he was at

work. Another surgery was performed, and this injury was determined to be Non Line of Duty.

This determination was made by the Public Safety Infirmary and was upheld as the proper status

by the employer after requesting that it be determined properly, reflective of the Line of Duty

injury. Plaintiff challenged this through the recognized bargaining unit for the Baltimore City

Fire Department, IAFF Baltimore Firefighters Local 734. He was informed that this request for

a determination that the injury was a reflection of the Line of Duty injury suffered in 1999 was

denied. This would serve as the dispute with the adverse employment action that was taken and

required by Plaintiff to be filed with the City. Since Plaintiffs recognized bargaining unit was

IAFF Local 734, Baltimore Firefighters, the only manner for which he could challenge this

determination was through them. This was not reflective of the policies, procedures, or statutes

enacted by legislation, however he was only afforded the shorter recovery period allowance and

retirement was forced upon him again. Plaintiff was placed in a vocational rehabilitation program

relating to his award of benefits from the Workers Compensation Commission of Maryland

before being given an opportunity to recover from the injury and have the proper corrective

surgery for his persistent experiences with extreme back pain. The Plaintiffs medical file was in

the possession of Comp Management and would have reflected the status of his recovery from

his back surgery was never released to the Panel of Hearing Examiners for consideration because

the Bd. of Trustees, F&PERS claims administrator, Ms. Sharon Garcia never requested it from

them. Plaintiff introduced evidence of the injury occurring to his back on September of 2001, in

which he was transported to the emergency room at Mercy Hospital after experiencing extreme


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disabling pain while at work. Respondents utilized a Non Line of Duty injury, which occurred

several months later to prohibit him from returning to his position. Although this claim involves

the aspect that a further progression of the L4-5 vertebral disc herniation, evident from past scans

and x-rays, finally progressed to the point of causing extreme pain and the loss of sensation to

feeling in his extremities, PSI determined, as did the hearing examiner, that this was the cause of

an injury that did not occur in the Line of Duty. The evidence could also cause to infer that the

Line of Duty injury of September of 2001 precipitated the events that led up to the July 02

surgery. Many inferences can be drawn from this case however; the finder of facts decision is

the only one that matters. The inferences drawn from the action must be based on fact and be

supported by evidence, which in this case, evidence shows that it was not. The Workers

Compensation Commission determined that Plaintiffs claim was work related and properly

awarded him compensation. The administrative hearing and the placement in the vocational

rehabilitation program were discriminatory and caused several prejudicial events to take place.

Plaintiff continually complained of back pain throughout 2001 and 2002 until the time of

his recurrent surgery in July of 2002. Upon his inability to return to his duties within six months,

he was Cut-Off or severed from employment with the Defendants on December 28, 2002.

During this time, and while still undergoing treatment with Dr. John Rybock, Plaintiff was

informed that Dr. Rybock was leaving the public practice and accepting the position as Dean of

Admissions for the Johns Hopkins University School of Medicine. This is understood to be a

distinctive honor, for a man with the professional accomplishments of a dedicated and competent

neurosurgeon, worthy of the bestowing of such honor. At the time, however, Plaintiff was

diagnosed with failed back syndrome, or to be exact, he received no substantial benefit from


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the July 02 surgery.7For improvement, he would have to seek further treatment from another

surgeon due to Dr. Rybock accepting the position of Dean of Admissions. Plaintiff was referred

to a physician, through his fiancs family who resided in Florida, by the name of Dr. Ryan

Glasser.

Upon this forced retirement on December 28, 2002, and the demonstration that the

physicians would not allow him to return to his duties, on January 1, 2003, Plaintiff relocated to

Florida in order to facilitate acquiring the services of Dr. Glasser. It was his belief that he was

free to choose the provider of his choice and he thought Doctor Glasser had a more aggressive

approach and understood Plaintiffs surgical needs. Dr. Glasser opinioned that an intervertebral

spinal fusion surgery was the last available option to correct his back disablement.8Plaintiff was

still subjected to the terms of the vocational rehabilitation program during the time he sought this

treatment and was continually threatened with the cutting off, or severing of the Workers

Compensation Commission award of benefits provided to him for not complying. The terms

stated that Plaintiff was actively required to pursue employment by engaging in pre-employment

interviews. A Functional Capacity Examination was ordered by the Vocational Rehabilitation

program directors, Comp Management, Inc., an agency contracted by Defendants to administer

their Workers Compensation obligations, to assess his capacity to perform work. This was

7Failed back syndrome (FBS), more commonly referred to as "failed back surgery syndrome" (FBSS),

refers to chronic back and/or leg pain that occurs after back (spinal) surgery. Multiple factors cancontribute to the onset or development of FBS. Contributing factors include but are not limited toresidual or recurrent disc herniation, persistent post-operative pressure on a spinal nerve, altered joint

mobility, joint hypermobility with instability, scar tissue (fibrosis), depression, anxiety, sleeplessnessand spinal musculardeconditioning. An individual may be predisposed to the development of FBS dueto systemic disorders such as diabetes, autoimmune disease and peripheral blood vessels (vascular)disease.

8Intervertebral Spinal Fusion, a new type of surgical treatment is available for patients who have beenunsuccessful at controlling their back pain with non-surgical treatments. The procedure uses a new typeof device called an intervertebral fusion cage to perform a spinal fusion between two or more vertebraein the lumbar spine (the lower back).
http://en.wikipedia.org/wiki/Hypermobilityhttp://en.wikipedia.org/wiki/Fibrosishttp://en.wikipedia.org/wiki/Depression_(mood)http://en.wikipedia.org/wiki/Anxietyhttp://en.wikipedia.org/wiki/Sleeplessnesshttp://en.wikipedia.org/wiki/Deconditioninghttp://en.wikipedia.org/wiki/Diabeteshttp://en.wikipedia.org/wiki/Autoimmune_diseasehttp://en.wikipedia.org/wiki/Peripheral_vascular_diseasehttp://en.wikipedia.org/wiki/Peripheral_vascular_diseasehttp://en.wikipedia.org/wiki/Peripheral_vascular_diseasehttp://en.wikipedia.org/wiki/Peripheral_vascular_diseasehttp://en.wikipedia.org/wiki/Autoimmune_diseasehttp://en.wikipedia.org/wiki/Diabeteshttp://en.wikipedia.org/wiki/Deconditioninghttp://en.wikipedia.org/wiki/Sleeplessnesshttp://en.wikipedia.org/wiki/Anxietyhttp://en.wikipedia.org/wiki/Depression_(mood)http://en.wikipedia.org/wiki/Fibrosishttp://en.wikipedia.org/wiki/Hypermobility


25/46

ordered to place him in the appropriate rehabilitation plan that was reflective of his disabling

injury. This FCE was performed in March of 2003, well afterthe December 28, 2002 Cut-Off

date of his employment as a firefighter and is troubling because although he demonstrated his

abilities to the extent that a person awaiting surgery for an intervertebral spinal fusion could, he

was found to be self limiting in his tests. This was not reflective of Plaintiffs actions and is

supported by evidence of the fact that he was diagnosed with failed back syndrome after July 02,

by Dr. John Rybock and he was awaiting surgery to be performed by Dr. Ryan Glasser to correct

that deformity. Administrators of that Functional Capacity Examination of March of 2003 did

not have the medical records associated with his pending surgery and his efforts were mistakenly

opinioned to be in bad faith, or self limiting to project a much worse depiction of his abilities

than what really existed. There is no evidence from Comp Management that details the status of

Plaintiffs medical condition at that time other than what has been submitted by Plaintiff at the

occurrence of the hearing. Plaintiff believes that providing the persons responsible for

conducting a fair assessment of his abilities during that period, the updated medical history of

Plaintiff was essential to determining his ability to perform work while waiting to have surgery

to correct a disablement resulting from being diagnosed with failed back syndrome. Plaintiffs

efforts are consistent with the abilities of someone who is waiting to have this procedure. An

administrative hearing for his retirement benefits proceeded before the Panel of Hearing

Examiners for the Bd. of Trustees, F&PRS on June 16, 2003. At the hearing, Mr. Frederick

McGrath, the administrative hearing examiner asked about the presence of a Functional Capacity

Exam report. The only Functional Capacity Examination report of record was the March 2003

report that Plaintiff presented as evidence. This test was not performed prior to the December 28,

2002 Cut-Off date as prescribed by Baltimore City Fire Department, Physical Standards


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policies and the utilization of the standards as found in NFPA 1582.9Mr. McGrath utilized this

report to opinion that Plaintiff was lying about the severity of his condition instead of having a

proper report that was submitted in accordance with NFPA standards, before he was severed

from his employment. The hearing examiner was not presented the information from Comp

Management that would properly reflect his current status, as awaiting surgery for the injury.

Interviews for potential employment were scheduled around Plaintiffs therapy program

throughout 2003-2004, but did not afford him time to recover from the therapy sessions that

routinely left him in pain from the tough physical demands of the therapy. This interfered with

his recovery from the intervertebral spinal surgery and interfered with his right to seek gainful

employment.

Plaintiff was ruled to be not disabled from the performance of his duties by the same

administrative hearing examiner, at the occurrence of the first administrative hearing. The

hearing examiner was prejudicial and discriminated against him due to his expressed desire to

challenge the hearing examiners previous decision. In that action, Plaintiff was denied all

benefits, although he was at least minimally qualified to receive an Ordinary Retirement benefit,

which fully supports his complaint that this was demonstrated as willful intentional retaliation

for filing another application for retirement benefits. Plaintiff had no other choice but to file for

9NFPA 1582: Standard on Comprehensive Occupational Medical Program for Fire Departments

This standard contains descriptive requirements for a comprehensive occupational medical program for firedepartments. 1.1.1* The medical requirements in this standard are applicable to fire department candidates andmembers whose job descriptions as defined by the authority having jurisdiction (AHJ) are outlined in NFPA1001,

Standard for Fire Fighter Professional Qualifications; NFPA 1002, Standard for Fire Apparatus Driver/OperatorProfessional Qualifications; NFPA 1003, Standard for Airport Fire Fighter Professional Qualifications; NFPA 1006,Standard for Rescue Technician Professional Qualifications; NFPA 1021, Standard for Fire Officer ProfessionalQualifications; and NFPA 1051, Standard for Wildland Fire Fighter Professional Qualifications. 1.1.2 This standardprovides information for physicians and other health care providers responsible for fire department occupationalmedical programs. 1.1.3 These requirements are applicable to public, governmental, military, private, and industrialfire department organizations providing rescue, fire suppression, emergency medical services, hazardous materialsmitigation, special operations, and other emergency services. 1.1.4 This standard shall not apply to industrial firebrigades that also can be known as emergency brigades, emergency response teams, fire teams, plant emergencyorganizations, or mine emergency response teams.


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these benefits. This would not have been the appropriate benefit that he should have received but

nevertheless, one in which he was eligible due to the fact that the determination to not allow him

to return to his duties was because of an injury that was perceived to be disabling enough to

disqualify him from his duties by the employer. There are no reports or statements from Plaintiff

or his doctors that supports the employers contention. Plaintiff raised an objection to Mr.

McGraths findings of fact and the prejudicial acts that were evident to have occurred because of

them. This objection was not properly ruled on as directed and the hearing continued. Plaintiff

was subjected to the administrative hearing while he was undergoing treatment for this injury

and after the decision of the administrative law judge that denied his retirement benefit he filed a

timely petition for an appeal of the administrative hearing examiners decision on September 29,

2003. He underwent surgery on October 16, 2003 and not only went through the long and

typically difficult recovery process associated with therapy; he complied to the best of his efforts

with the vocational rehabilitation program terms. Plaintiff should never have been subjected to

any final determinations, rulings, or vocational reassignment programs while receiving treatment

for that injury. As Plaintiff has submitted, he received the denial of his benefits on the same day

his father passed away, forever correlating the erroneous decision associated with the

unjustifiable termination from his calling with the remembrance of his fathers death. This has

had a devastating effect on his ability to properly honor the life of his father by marking this

profoundly saddening day in the history of his life, and the relationship with which that denial

has on his memory. Claimant honors his father appropriately, but he will never forget the events

of that day and the unfortunate association that comes along with it. It is by coincidence only that

he received this notification on that date.


28/46

Upon being released from the care of his physician and relocating back to his home at his

present address of 8225 Poplar Mill Road, Nottingham, MD 21236-5581, he requested to be

reinstated to the Baltimore City Fire Department, pursuant to Mr. McGraths decision that he

was not disabled from the performance of his duties. This request was denied and Plaintiff

discovered that the petition for an appeal of Mr. McGraths decision was dismissed for lack of

prosecution on November 15, 2004. Plaintiff never received this notification, nor has he received

any correspondence from the Circuit Court for Baltimore City in association with this appeal. At

all times, Plaintiff has made certain to inform all parties of his contact information and mailing

addresses. As found in Rule 55, Removal for Cause, of the Civil Service Commission states in

part that No person shall be removed from a position in the Civil Service except by the

appointing officer having jurisdiction over such person, and the said appointing officer shall give

the employee so removed, or by mail registered to the employees last known address, written

notice of the removal, in which shall be given the reasons therefore. A copy of the notice to the

employee shall be furnished [to] the Commission forthwith. This was completed on November

18, 2002. After notice has been given, the appointing officer shall schedule an informal

conference with the employee to be held on or before the effective date of removal. At this

conference, the employee may submit a written statement in response to the reasons for

termination proffered, or may orally respond to the proffered reasons. This was completed on

November 21, 2002 during the Employee Exit Interview conducted by Lt. Jeffrey Zablocki,

Truck 1 BCFD. This evidence is in the Citys possession and has not been afforded to Plaintiff,

as of this date. On the interview form he asserts that he was treated unfairly during the process of

being determined ineligible by the department, however, this information is contained in his

employment files and would have been disclosed upon discovery, if so ordered. As of the


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Courts decision on August 11, 2009, Plaintiff made another attempt to obtain information from

his employment file that would demonstrate substantial compliance. He was denied due to an

ongoing EEOC investigation. Plaintiff has requested to discover these documents from his

employment file but has not been afforded the opportunity, as of this date.

The Commission Rule further requires that, The said notice shall state further that the

employee has the right within 5 days from the date said notice is given to him, or from the date it

is mailed, to request the Commission, in writing, to investigate his removal At that time,

December 28, 2002, there was no dispute over the Public Safety Infirmarys determination to

medically disqualify him from performing his duties. The dispute arose when a Function

Capacity Examination or other Medical Evaluation as prescribed by NFPA 1582 standards was

not being facilitated to assess whether he could or couldnt perform his duties. As mentioned, a

letter from his former counsel, on December 2, 2002 demonstrates this. (Exhibit 4)

The notification provisions under Rule 55 of the Baltimore City Civil Service

Commission are similar to that of the Maryland Local Government Tort Claims Act. The

purpose of the LGTCA is to provide a remedy for those injured by local government officers and

employees acting without malice and in the scope of employment, while ensuring that the

financial burden of compensation is carried by the local government ultimately responsible for

the public employees actions. Ashton v. Brown, 339 Md. 70, 107- 08, 660 A.2d 447, 465-66

(1995). Thus, the LGTCA requires Maryland counties and other entities defined therein as local

governments, 5-301 (d), to pay, up to certain limits, judgments for compensatory damages

rendered against their employees as a result of tortious acts committed in the scope of

employment. Williams v. Maynard, 359 Md. 379, 380-81, 754 A.2d 379, 380 (2000). See 5-

303 (b). The LGTCA generally requires that plaintiffs give local government defendants notice


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of claims within 180 days of the injury, 5-304(a), and that such notice be given to designated

government officials. 5-304(b)(1). The purpose of the notice requirement is, to protect the

municipalities and counties of the State from meretricious claimants and exaggerated claims by

providing a mechanism whereby the municipality or county would be apprised of its possible

liability at a time when it could conduct its own investigation, i.e., while the evidence was still

fresh and the recollection of the witnesses was undiminished by time, sufficient to ascertain the

character and extent of the injury and its responsibility in connection with it. Williams v.

Maynard, supra, 359 Md. at 389-90, 754 A.2d at 385 (internal citations omitted) (quoting

Bartens v. City of Baltimore, 293 Md. 620, 626, 446 A.2d 1136, 1138-39 (1982)). SeeJackson v.

Board of County Commissioners, 233 Md. 164, 167, 195 A.2d 693, 695 (1963). Maryland has

recognized that substantial compliance with the statutory requirements may nevertheless satisfy

the statute where the purpose of the notice requirement is fulfilled. Williams v. Maynard, 359

Md. at 390, 754 A.2d at 385; Grubbs v. Prince Georges County, 267 Md. 318, 325, 297 A.2d

754, 758, (1972);Jackson v. Board of County Commissioners, 233 Md. at 167-68, 195 A.2d at

695; But seeLoewinger v. Prince Georges County, 266 Md. 316, 292 A.2d 67 (1972). The

LGTCA includes an exception to the notice requirement also. Section 5-304(c) provides that

unless the defendant can affirmatively show that its defense has been prejudiced by lack of

required notice, upon motion and for good cause shown the court may entertain the suit even

though the required notice was not given. The question of whether there is good cause to waive

the notice requirement is within the discretion of the trial court.Heron v. Strader, 361 Md. 258,

270, 761 A.2d 56, 62 (2000);Madore v. Baltimore County, 34 Md. App. 340, 344, 367 A.2d 54,

57 (1976);Downey v. Collins, 866 F.Supp. 887, 889 n. 7 (D.Md.1994). The trial courts findings

will not be disturbed, therefore, absent a showing of an abuse of discretion. Heron, 361 Md. at


31/46

271, 761 A.2d at 63;Madore, 34 Md. App. at 344, 367 A.2d at 56-57; Westfarm Assocs. v.

Washington Suburban Sanitary Commn, 66 F.3d 669, 676 (4th Cir. 1995). The test for whether

good cause exists to permit waiver is that of ordinary prudence, that is, whether the claimant

prosecuted his claim with that degree of diligence that an ordinarily prudent person would have

exercised under the same or similar circumstances.Heron, 361 Md. at 271, 761 A.2d at 63

(quoting Westfarm Assocs., 66 F.3d at 676-77); see alsoMadore, 34 Md. App. at 345, 367 A.2d

at 57. Despite his filing of a grievance with IAFF Local 734s representative, Mr. Jerry Robusto,

Plaintiffasserts that the communication between his former counsel and the Citys third party

claims administrator, Comp Management Inc., on December 2, 2002 would have furthered the

assertion that he substantially complied with the notification intent of Civil Service Commission

Rule 57, as the intent was to give the agency sufficient notification to facilitate an investigation.

Despite many requests by Plaintiff for an investigation of this matter by the boards for which all

Respondents were employed, they refused to follow the Baltimore City Codes mandate that an

review of the proceeding before each board be conducted, therefore, Plaintiff alleges the

obstruction of justice charge against each and every one of them in their professional and

individual capacities.

The primary question in the United States District Court action was whether the

statutory time limit for filing charges under Title VII of the Civil Rights Act of 1964, 78 Stat.

253, as amended, 42 U.S.C. 2000e et seq. (1970 ed.) was a jurisdictional prerequisite to a suit

in the District Court. Respondents, through counsel, argued that his complaint was barred by

Title VII's "statute of limitations" because Plaintiff failed to file charges with the Baltimore City

Civil Service Commission and the Equal Employment Opportunity Commission (EEOC) within

the statutory time limits. This is absolutely not true. Even though Plaintiff asserts that he did in


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fact file the perquisite charges, the Court of Appeals for the Seventh Circuit relied on its reading

of the statutory language as "jurisdictional."Electrical Workers v. Robbins & Myers, Inc., 429

U.S. 229, 240, 97 S.Ct. 441, 449, 50 L.Ed.2d 427 (1976); United Air Lines, Inc. v. Evans, 431

U.S. 553, 555, n. 4, 97 S.Ct. 1885, 1887, n. 4, 52 L.Ed.2d 571 (1977); Alexander v. Gardner-

Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974);McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). Other Courts of

Appeals that have examined the same materials have reached the opposite conclusion. Carlile v.

South Routt School District Re 3-J, 652 F.2d 981 (CA10 1981); Coke v. General Adjustment

Bureau, Inc., 640 F.2d 584 (CA5 1981);Leake v. University of Cincinnati, 605 F.2d 255 (CA6

1979);Hart v. J. T. Baker Chemical Corp., 598 F.2d 829 (CA3 1979);Laffey v. Northwest

Airlines, Inc., 185 U.S.App.D.C. 322, 567 F.2d 429 (1976). In reaching its decision, the Court of

Appeals for the Seventh Circuit explicitly declined to followMcArthur v. Southern Airways,

Inc., 569 F.2d 276 (CA5 1978) (en banc).Air Line Stewards and Stewardesses Assn. v. TWA,

630 F.2d 1164, 1168-1169 (1980). InMcArthur, the Court of Appeals for the Fifth Circuit

reversed the approval of a settlement agreement in a Title VII class action, holding that the

District Court lacked jurisdiction because no plaintiff had filed a timely charge of discrimination

with the EEOC. Although subsequent legislative history is not dispositive, Seatrain Shipbuilding

Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S.Ct. 800, 813, 63 L.Ed.2d 36 (1980); Cannon v.

University of Chicago, 441 U.S. 677, 686, n. 7, 99 S.Ct. 1946, 1952, n. 7, 60 L.Ed.2d 560 (1979),

the legislative history also indicates that Congress intended the filing period to operate as a

statute of limitations instead of a jurisdictional requirement. In the final Conference Committee

section-by-section analysis of H.R. 1746, the Equal Opportunity Act of 1972, 118 Cong.Rec.
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7166, 7167 (1972), the Committee not only termed the filing period a "time limitation," but

explained:

"This subsection as amended provides that charges be filed within 180 days of the

alleged unlawful employment practice. Court decisions under the present lawhave shown an inclination to interpret this time limitation so as to give the

aggrieved person the maximum benefit of the law; it is not intended that such

court decisions should be in any way circumscribed by the extension of the time

limitations in this subsection."

The Senate Labor Committee's section-by-section analysis of the amendments

explained that "[t]his subsection would permit . . . a limitation period similar to that contained in

the Labor-Management Relations Act, as amended." S.Rep.No. 92-415, p. 37 (1971), U.S.Code

Cong. & Admin.News 1972, p. 2137. The Court has recognized that the National Labor

Relations Act was "the model for Title VII's remedial provisions," Teamsters v. United States,

431 U.S. 324, 366, 97 S.Ct. 1843, 1870, 52 L.Ed.2d 396 (1977). Because the time requirement

for filing an unfair labor practice charge under the National Labor Relations Act operates as a

statute of limitations subject to recognized equitable doctrines and not as a restriction of the

jurisdiction of the National Labor Relations Board, seeNLRB v. Local 264, Laborers' Int'l

Union, 529 F.2d 778, 781-785 (CA8 1976); Shumate v. NLRB, 452 F.2d 717, 720 (CA4 1971);

NLRB v. A. E. Nettleton Co., 241 F.2d 130, 133 (CA2 1957);NLRB v. Itasca Cotton Mfg. Co.,

179 F.2d 504, 506-507 (CA5 1950), the time limitations under Title VII should be treated

likewise. Being subjected to the process, after being severed from his position during the

subsequent spinal surgery and rehabilitation interfered with his ability to comply with these

requirements.
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Moreover, when Congress in 1978 revised the filing requirement of the Age

Discrimination in Employment Act of 1967, 81 Stat. 602, 29 U.S.C. 621 et seq. (1976 ed. and

Supp.V), which was modeled after Title VII, see Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99

S.Ct. 2066, 60 L.Ed.2d 609 (1979), the House Conference Report explicitly stated that "the

'charge' requirement is not a jurisdictional prerequisite to maintaining an action under the ADEA

and that therefore equitable modification for failing to file within the time period will be

available to plaintiffs under this Act." H.R.Conf.Rep. 95-950, p. 12, U.S.Code Cong &

Admin.News 1978, 504, 534.

Respondents were fully aware of all of the events disclosed in the above recitation of the

reasons surrounding Plaintiffs actions. They enrolled him in a vocational rehabilitation program,

provided payment for medical services rendered on behalf of him, provided compensation to him

in association with the awarding of Workers Compensation benefits, when all that was required

was to not interfere with his recovery and his rights associated with an occupational injury, allow

him to regain the property right he held on his appointment with the Baltimore City Fire

Department without prejudice or discrimination, and protect him from being subjected to

prejudice and discrimination.

This claim is brought pursuant to the Americans with Disabilities Act of 1990, as

amended 42 U.S.C. sec. 12101 et seq., the Rehabilitation Act of 1973, as amended, 29 U.S.C.

sec. 701 et seq. (Rehabilitation Act), and the 14th Amendment to the Constitution for allegations

of the denial of due process and equal protection under Federal, as well as, Maryland State

employment laws and breach of contract causing Plaintiffs employment to be terminated,

without cause.
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The Americans with Disabilities Act of 1990 (ADA) is the short title ofUnited States

law (Pub. L. 101-336, 104 Stat. 327, enacted July 26, 1990), codified at 42 U.S.C. 12101 et

seq. It was signed into law on July 26, 1990, by President George H. W. Bush, and later amended

with changes effective January 1, 2009. The ADA is a wide-ranging civil rights law that

prohibits, under certain circumstances, discriminationbased on disability. It affords similar

protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964,

which made discrimination based on race, religion, sex, national origin, and other characteristics

illegal. Disability is defined as "a physical or mental impairment that substantially limits a major

life activity." The determination of whether any particular condition is considered a disability is

made on a case by case basis. Disability is, in the ADA, defined as "a physical or mental

impairment that substantially limits a major life activity." Examples of major life activities

include, but are not limited to, "caring for oneself, performing manual tasks, seeing, hearing,

eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading,

concentrating, thinking, communicating, and working". The Act overturns a 1999 U.S. Supreme

Court case holding that mitigating measures had to be considered in determining whether an

impairment substantially limited a major life activity; it specifically provides that such

impairment must be determined without considering such ameliorative measures. Another court

restriction overturned is the interpretation that an impairment that substantially limits one major

life activity must also limit others to be considered a disability.

A qualified person with a disability must not only be an individual with a disability, but a

qualified individual. An employer is not required to hire or retain an individual who is not

qualified to perform the job. According to the regulations, a qualified individual with a disability

is someone with a disability who satisfies the requisite work, experience, education and other job
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related requirements of the employment position such individual holds or desires, and who, with

or without reasonable accommodation can perform the essential functions of the position. There

are two basic steps to determine if an individual is qualified under the ADA. The first step is to

determine if the individual meets the necessary prerequisites for the job such as; education,

skills, experience, licenses, training, certificates, etc. The second step requires an employer to

focus on the essential functions of the job. Many people with disabilities can perform essential

functions of the job but are denied employment because they cannot do things that are only

marginal to the job. Titles II and III of the ADA protect qualified individuals with disabilities.

Not every person with a disability is necessarily qualified. To determine if a person with a

disability is eligible to participate in the services and programs offered by a public or private

entity, a person with a disability is considered to be qualified if the person meets the essential

eligibility requirements with or without reasonable modifications to rules, policies or practices,

auxiliary (communications) aids or services; or removal of architectural, communications or

transportation barriers. The "essential eligibility requirements" for participation in many

activities may be minimal.

If a person with a disability who is otherwise qualified cannot perform one or more

essential job function because of his disability, an employer, in assessing whether or not the

person with the disability is qualified to do the job, must consider whether there are

modifications or adjustments that would enable the person to perform these functions. Such

modifications are called "reasonable accommodation." Plaintiff needed no accommodation in

order to perform his duties. The only thing he required was no interference from Defendants in

order for him to resume his duties. People who exercise their rights under the ADA or


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individuals who assist them in exercising their rights are protected against retaliation and

coercion such as threats, intimidation or interference. This claim involves both of those elements.

In response to Plaintiffs Amended Complaint in the US District Court for Maryland,

Defendants filed a second motion for summaryjudgment that states affirmative defenses

recognized by the Court. Plaintiffasserts that Defendants motivation for filing such a general

dispositive motion on the ground that the Court lacked jurisdiction over the subject matter and

that he failed to state a claim that can be granted by the Court is that they are grossly unaware of

the actions involving their own agencies and through the incompetency of employees of the City

of Baltimore, are committed to covering their mistakes up. Because Plaintiff is not an

experienced attorney and because of the extremely prejudicial and discriminatory acts of

Defendants, he has since had to redirect his focus from saving the lives of others to now saving

his own.

Plaintiff has found it to be impossible to retain counsel due to several aspects. The first is

economical of course. Since his unlawful termination, he receives no compensation, no benefit,

and is confronted with the stigma that surrounds individuals with back injuries in the

employment marketplace. Plaintiff cannot find employment, within the limits of his education

and experience that are not involved with heavy physical labor. Plaintiff is well trained and

imminently qualified for driving a truck, concrete demolition and construction, and structural

firefighting in an urban fire department. All of which require a strong back. If Plaintiff can

perform those duties, such as those in the concrete construction trade, then surely he can perform

the duties associated with the suppression of fires. A re-examination would facilitate just that and

is even required of from the Bd. of Trustees, F&PRS.10

10Baltimore City Code Article 22, 34 Benefits, F&PRS


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Second is the stigma that surrounds taking on a case that has begun with different

counsel. As stated, Plaintiff retained the services of Alex Katzenberg, Esquire to pursue the

special disability retirement action. This relationship suffered due to Plaintiffs growing

frustration to Mr. Katzenbergs lack of attention to the matter. Mr. Katzenbergs lack of

preparation was evident in the representation he provided. He provided no evidence, no

testimony, and no witnesses. Mr. Katzenberg did object to the absence of the injury report that

was the cause of that action, the fact that evidence was missing, and that the character of the

hearing was proceeding on the mistaken principle that Plaintiff desired the retirement. Men who

achieve their lifelong goal of becoming a firefighter do not just give it up easily. Plaintiff

pursued his career in the department with the same passion as he is now asserting his rights. Still

this stigma complicates the facilitation of counsel.

The last aspect is the extensiveness of the claim and its history. Due to the restrictions

imposed upon him in relation to the aforementioned aspects, he has not entered into the

economical aspect that representation would require. It is estimated, based upon the

compensation that the Court finds appropriate in the awarding of legal fees, a lawyer with even

average legal competence would cost approxi

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