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Baltimore County accused of workplace disabilities act violations

U.S. Justice Department investigating harassment, retaliation

By Arthur Hirsch, The Baltimore Sun

9:15 PM EDT, September 28, 2011

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The U.S. Justice Department is investigating allegations that Baltimore County government has harassed employees over their medical conditions and forced some out of their jobs, according to court documents and people who have spoken with federal investigators.

The inquiry stems from accusations that have dogged the county for several years. It follows two court cases in which the county had to pay a combined $625,000 to former employees over similar claims, and a third case that is scheduled for a settlement conference next month. And it comes after at least 10 cases have wound up before the U.S. Equal Employment Opportunity Commission, which repeatedly found that the county's actions violated the Americans with Disabilities Act.

County officials, the Justice Department and the EEOC all declined to comment on the federal investigation.

But Sgt. Cole B. Weston, president of the Baltimore County police union, said the harassment claims arise from practices that he believes are part of an effort to control worker compensation costs by intimidating employees with injuries or illnesses.

"It influences the process so that some people who were eligible to file those claims didn't," said Weston. "There's a fear of filing a claim and the county coming after them."

Typical among the complaints is that of former Woodlawn firefighter Donald K. Becker Sr., who was sidelined by shoulder replacement surgery in the summer of 2008. Becker's doctor declared his recovery "remarkable" several months later and verified that he was ready to return to work, according to his attorney.

But then a county-hired doctor disagreed, and Becker said he was given four options: retire, take unpaid leave, transfer to another position or resign. In a federal discrimination complaint, he claims that the county forced him into retirement in June 2009, after nearly three decades with the department, because of a "disability."

The Justice Department has been investigating "several medical examination cases" involving county employees at least since last year, according to federal court documents. The department's lawyers met with county lawyers for the first time in early 2010 to talk about the inquiry and ask for employee records, according to a motion filed by the county in a civil case brought by an employee.

Kathleen Cahill, the lawyer for nine of the workers who filed EEOC complaints, said a Justice Department lawyer updated her on the progress of the investigation Monday. Another complainant — Robert Wickless, once the civilian head of the county Police Department's personnel division — said the Justice Department contacted him in the spring in relation to the investigation. Cahill and Wickless also provided copies of EEOC documents, which the agency is not permitted to release.

Many of the Baltimore County cases involve stories that are similar, and which center on allegations from employees who say the county government refused to let them work despite improvements in their medical condition. For instance, two firefighters and a police lieutenant — who claim they were forced to retire — said they were pronounced fit for full duty by their own doctors, only to be ordered to take exams given by a doctor working for the county who reached a different conclusion.

In four of the 10 cases filed with the EEOC, employees say the county's doctor conducted tests and took medical histories that went "beyond the scope" of their disability, according to the commission's findings.

Former firefighter Stanley P. Kuklinski, 52, who had been with the department for 25 years, wrote in his complaint to the EEOC that he underwent heart bypass surgery in 2007 and returned to work that fall after his attending physician "cleared me for full duty." He was then placed on light duty and examined by the county's doctor, who "found him unfit for duty," according to a written report from Gerald S. Kiel, the field office director for the EEOC.

Cahill said that even though Kuklinski's cardiologist said he could work, he was ordered to stay home on sick leave in January 2008. Kuklinski alleges that he was later forced into retirement because the county told him he was "medically unfit for duty."

Weston, the union president, said county practices cited in the complaints began around the time former County Executive James T. Smith Jr. raised the issue of rising workers' compensation costs in his annual budget address in April 2006. Weston said some police officers have told him that the county's tactics discouraged them from making claims.

Smith did not return phone calls seeking comment.

A county spokeswoman said government officials do not discuss such cases as a matter of policy. County Executive Kevin Kamenetz took office in December 2010, after the alleged conduct took place.

Some of the discrimination cases have landed in court. Police Detective William P. Blake won $225,850 in damages and interest from the county after a six-day federal jury trial last year. The award was upheld on appeal this summer, closing the case.

Blake, a 24-year member of the force, accused the county of violating his rights under the ADA when he was ordered to take neurological and fitness-for-duty tests in 2006, a decade after he suffered what the lawsuit called a "potential seizure" on the job. He said the order for testing came soon after he testified before the county Board of Appeals on behalf of another officer challenging a forced retirement for health reasons.

In another case alleging ADA violations and race discrimination, the county admitted no fault but paid a $400,000 settlement to Fire Department paramedic Dontay R. Paige in 2007.

Next month, county lawyers are scheduled to appear at a settlement conference in a federal lawsuit brought by Michael Carroll of Orlando, Fla., claiming that the Police Department didn't hire him in 2006 because of a childhood diabetes diagnosis, a decision he claims violates the ADA. The county has denied the allegations in court records.

Wickless, the former head of the police personnel division, said in his EEOC complaint that he advised the Police Department that "the decision to order certain police officers for fitness-for-duty examinations was likely in violation of the Americans with Disabilities Act."

He said he wrote three internal memos to his supervisors about potential ADA violations in 2005 and 2006. Wickless later gave a deposition in a lawsuit brought by an officer who had been subjected to fitness-for-duty exams, according to his EEOC complaint.

After that, Wickless said he was "increasingly isolated and marginalized by my department, stripped of meaningful job duties and barred from attending crucial meetings." He said he took early retirement in March 2008, when he was nearly 61 years old.

Cahill, who specializes in employment and civil rights law and represents several of the workers, said she believes their lengthy legal battles demonstrate an unwillingness on the county's part to address problems. Cahill this month filed a motion for $515,000 in fees and other costs for work that she and an appellate lawyer did over the course of five years in the Blake case.

"My job is to keep people employed and stop the trouble; my job is not to litigate for six years," said Cahill. "This is the most stubborn, irrational opponent I've had, and it's a government."

arthur.hirsch@baltsun.com