Bingman v. Baltimore County
Filing
97
MEMORANDUM AND ORDER granting in part 92 Motion for Injunctive Relief; denying the request for reinstatement or front pay without prejudice; denying the affirmative injunctive relief requested. Signed by Judge Marvin J. Garbis on 8/31/2016. (krs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LARRY R. BINGMAN
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Plaintiff
VS.
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BALTIMORE COUNTY, MARYLAND
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Defendant
CIVIL ACTION NO. MJG-13-2678
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MEMORANDUM AND ORDER RE: INJUNCTION MOTION
The Court has before it Plaintiff’s Motion for Injunctive
[and other] Relief [ECF No. 92] and the materials submitted
relating thereto.
The Court finds that a hearing is
unnecessary.
Plaintiff, by the instant motion, seeks:
Entry of a monetary judgment of $400,000.00 with costs
and post-judgment interest;
Reinstatement or front pay;
Expungement of reference to cancer treatment from
Plaintiff’s personnel files at Baltimore County;
Certain future actions by Baltimore County regarding
employees; and
The opportunity to file a fee petition and bill of
costs at least three weeks after the Court enters
judgment on the jury’s verdict.
These matters shall be addressed in turn.
A.
Judgment
The Court shall enter a Judgment pursuant to the jury
verdict but anticipates that Baltimore County may file timely
post-trial motions relating to the Judgment.
B.
Reinstatement or Front Pay
The pertinent statute, 42 U.S.C. § 2000e-5(g), provides, in
relevant part:
If the court finds that the respondent
has intentionally engaged in . . . an
unlawful employment practice charged in the
complaint, the court may . . . order such
affirmative action as may be appropriate,
which may include, but is not limited to,
reinstatement . . .
The County responded to Plaintiff’s request for
reinstatement by stating that “[a]ny reinstatement or award of
front pay would have to be accomplished by a hearing. . . .”
Def.’s Resp. 3, ECF No. 94.
Defendant then referred, however,
to the factors related to the issuance of an injunction rather
than to the remedies available under § 2000e-5(g).
Reinstatement “is an equitable remedy whose appropriateness
depends upon the discretion of the court in the light of the
facts of each individual case.”
Equal Employment Opportunity
Comm’n v. Kallir, Philips, Ross Inc., 420 F. Supp. 919, 926
(S.D.N.Y. 1976), aff’d sub nom. E.E.O.C. v. Kallir, Philips,
Ross, Inc., 559 F.2d 1203 (2d Cir. 1977).
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The objective is “to
make the victims of unlawful discrimination whole by restoring
them, so far as possible to a position where they would have
been were it not for the unlawful discrimination.” Ford Motor
Co. v. E.E.O.C., 458 U.S. 219, 230 (1982).
Reinstatement has been denied in cases where the Court
found that the circumstances were inappropriate for such relief.
See, e.g., Duke v. Uniroyal Inc., 928 F.2d 1413, 1423 (4th Cir.
1991)(citing cases in an ADEA1 context, the court stated that
“notwithstanding the desirability of reinstatement, intervening
historical circumstances can make it impossible or
inappropriate”); Kallir, 420 F. Supp. at 926-27 (denying
reinstatement in light of the hostility between the parties but
ordering one year’s front pay to allow plaintiff an opportunity
to find other employment).
“When reinstatement is not
appropriate, then other remedies may be considered. . . .
[F]ront pay is an available remedy to complete the panoply of
remedies available to avoid the potential of future loss.”
Duke, 928 F.2d at 1423; see also Huppenbauer v. May Dep’t Stores
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“When called upon to interpret the ADA, other courts often
have looked to the Age Discrimination in Employment Act (“ADEA”)
and Title VII of the Civil Rights Act of 1964 for guidance. The
ADA, ADEA, and Title VII all have virtually identical
definitions and liability schemes and all are designed with a
common purpose: to prohibit discrimination in employment.”
Stephens v. Kay Mgmt. Co., 907 F. Supp. 169, 171 (E.D. Va.
1995).
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Co., 99 F.3d 1130 (4th Cir. 1996)(reviewing the propriety of
front pay in an ADA context).
Plaintiff’s employment was terminated on July 3, 2010.
The
jury found the termination wrongful and awarded him noneconomic
damages as well as lost wages for part of the period from the
termination to the time of trial.
However, the jury found that,
for the last 218 weeks of that period, Plaintiff had failed to
make a reasonable effort to obtain work that was available to
him. Jury Verdict, ECF No. 89.
Presumably, Plaintiff was then
receiving, and is continuing to receive, Social Security
disability benefits.
The Plaintiff has not, in the instant motion, alleged
sufficient facts to warrant reinstatement or an award of front
pay.
As to reinstatement, the Court requires at least facts
regarding Plaintiff’s present ability to perform the essential
functions of the job to which he seeks reinstatement, and what
will occur vis-à-vis Social Security should he be reinstated.
As to front pay, the Court requires at least facts regarding
when he would have retired absent the wrongful termination and
appropriate offsets – such as disability benefits – to be taken
into account in setting any front pay.
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C.
Affirmative Injunctive Relief
Plaintiff seeks injunctive relief affecting future actions
by the County.2
As stated by Judge Harvey of this Court:
To establish standing for injunctive
relief, a plaintiff must first demonstrate
that he will suffer an injury in fact which
is (a) concrete and particularized and (b)
actual or imminent, not conjectural or
hypothetical. To establish standing, a
plaintiff must also demonstrate that the
conduct complained of will cause the injury
alleged, and that the injury will be
prevented by a favorable decision. In ADA
cases, courts have held that a plaintiff
does not have standing to obtain injunctive
relief if he cannot demonstrate a likelihood
that he will suffer future discrimination at
the hands of the defendant.
Gregory v. Otac, Inc., 247 F. Supp. 2d 764, 770 (D. Md. 2003)
(citing Proctor v. Prince George’s Hosp. Ctr., 32 F. Supp. 2d
830, 832 (D. Md. 1998)(emphasis added)).
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i.e., expunging from Baltimore County’s personnel file any
records relating to Plaintiff’s cancer treatment; requiring
Baltimore County to utilize the form medical authorization
attached to the Maryland Workers’ Compensation claim form
instead of utilizing its own medical authorization form;
requiring Baltimore County to limit requests for medical records
in workers’ compensation claims to the body parts listed on the
claim form in box 33; requiring Baltimore County to include a
cover letter to medical providers when seeking medical records
in workers’ compensation claims explaining that it is only
seeking records related to the body parts listed in box 33 on
the claim form; requiring Baltimore County to keep medical
records in separate files from employees’ personnel files as
required by 42 U.S.C. § 12112(d)(3)(B) and its applicable
regulations. Mot. 4-5, ECF No. 92.
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Plaintiff lacks standing to seek an injunction for future
actions of the County because there is no showing that he will
suffer an injury in fact from the action in question.
As to only one of the items sought by Plaintiff – an
expungement from his personnel records - is there a realistic
likelihood that it will affect him.
As to the expungement of records relating to his cancer
treatments, Plaintiff’s legitimate concern would not be with the
County’s having the records but with some future improper
disclosure or use.
The Court finds that the expungement may
adversely affect the County in a future context in which it may
have legitimate need for the records.
D.
Filing Fee and Cost Petition
Plaintiff may file a fee petition and bill of costs within
three weeks3 after the Court enters judgment on the jury’s
verdict.
The County may, of course, respond in due course.
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Under Local Rule 109.1(a), “a bill of costs shall be filed
within fourteen (14) days of the entry of judgment” unless
otherwise ordered by the Court. Under Local Rule 109.2(a), “any
motion requesting the award of attorneys’ fees must be filed
within fourteen (14) days of the entry of judgment” unless
otherwise ordered by the Court. The Court shall allow an
additional seven (7) days for the bill of costs and the
attorneys’ fees motion to be filed. All other related deadlines
remain as stated in Local Rules 109.1 and 109.2.
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E.
Conclusion
For the foregoing reasons:
1.
Plaintiff’s Motion for Injunctive [and
other] Relief [ECF No. 92] is GRANTED IN
PART.
2.
The request for reinstatement or front pay
is DENIED WITHOUT PREJUDICE to the ability
of the Plaintiff to file, by September 30,
2016, a motion adequately presenting the
basis for such a request.
3.
The affirmative injunctive relief requested
in the said motion is DENIED.
4.
Plaintiff may file a fee petition and bill
of costs within three weeks after the Court
enters judgment.
5.
Judgment shall be entered in due course.
SO ORDERED, on Wednesday, August 31, 2016.
/s/__________
Marvin J. Garbis
United States District Judge
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