In the US District Court for the District of Maryland
Despite the fact that this injury was suffered in the Line of Duty, and the policies that governed how injuries were assessed under the NFPA’s physical standards adopted by the Baltimore City Fire Department, the hearing examiner ruled that I was not disabled from the performance of my duties. Upon my release from my doctor’s care for the surgery, as is reflected in Biscoe v. Baltimore Police Department (citation omitted) I requested to be reinstated to my position as a firefighter in the City of Baltimore, of which the City denied. I then began the process of disputing the determination of the City to deny me the ability to return to my duties due to employment discrimination with the EEOC. After waiting a period of time for a “Right to Sue” letter from the EEOC but not receiving it, I made a request to them to issue it. This request was granted and I then filed a lawsuit in the United States District Court for Maryland. 
Upon the filing of the complaint, and the subsequent Motion to Dismiss that was filed by the City of Baltimore, I attempted to comply with the Federal Rules of Civil Procedure in the attempt to obtain evidence that was contained in my employment file that was withheld by the City Solicitor in the proceeding before the administrative hearing examiner. The Baltimore City Solicitor denied this request and informed me that I would need to file a Freedom of Information Act request in order to get it.  

The City of Baltimore submitted an affidavit with a Motion to Dismiss which was completed by the Division Chief of Administration and Support for the Baltimore City Fire Department that demonstrated that he was “competent to swear oaths and give testimony in a court of law”, that he had “personal knowledge of the matter” and was “competent to testify” to those matters.  The Division Chief of Administration and Support, who should be well versed in matters of employment policies of the members under their command, asserted that “Pursuant to Civil Service Rule 57, an employee who has reason to believe that his removal is without just cause…shall file with the Commission within 5 days after the receipt of an order of removal, a removal, a request in writing that the Commission investigate his or her removal and shall contain a statement that he believes that the removal was without just cause as required in the Civil Service Commission Rules… After a diligent search, BCFD can locate no notice of a request to investigate a removal without just cause on behalf of Brian Charles Vaeth to the Baltimore City Civil Service Commission.” The affidavit concluded by stating that:

Affidavit of Rod Devilbiss, Dep. Chief Administration
Rule 55-57 of the Civil Service Commission.
The Division Chief’s signature then appears immediately thereafter.
This affidavit was fraudulent and, more importantly, was accommodated by the willingness of Baltimore City Solicitor to allow that fraud to thoroughly invade the litigation and support their effort to prevail against me despite the injury to the reputation of the judicial system that has resulted. The case was dismissed due to the sworn statements contained in that affidavit and was fraudulent for the following reasons:

The Medical Director for the City has final discretion over the duty status of all members of the Baltimore City Fire Department.
As stated in the foregoing, the City of Baltimore adopted the standards of the National Fire Protection Agency for the Baltimore City Fire Department. These standards also included the physical standards adopted regarding injuries suffered by members which would affect their job performance. The decision to not allow me to return to my duties was made by the Medical Director for the Baltimore City Fire Department by using the standards adopted from the NFPA, which disqualified me from the further performance of my duties, as a firefighter due to the number of surgeries i had related to this injury. When the Medical Director basis his findings on a medically related issue, as the medical expert for the City of Baltimore, he has the final discretion over the duty status of the members and not even the Mayor can override that determination. The Civil Service Rules then become inapplicable to members of the Baltimore City Fire Department. To assert that I did not follow the prescribed rules, to file a complaint that no action would be taken on was just another successful attempt to obfuscate from the truth and prevail no matter what by the Baltimore City Solicitor. The true facts did not even matter to the Baltimore City Solicitor, as they have shown that they are willing to make it all up as they go along and misrepresent the facts to suit their needs.

Much of the United States District Court’s opinion focused on findings that the underlying reason I could not proceed was that the court lacked jurisdiction to grant the relief requested because I could not prove that I exhausted my administrative remedies by filing a dispute with the City over the adverse employment action in a timely manner. I absolutely complied with the procedures associated with filing a dispute over this adverse employment practice. I contacted my Union representative and requested to grieve the incorrect determination of it being a Non-Line of Duty injury. This information, which is part of my employment and medical file that is in the control of the City of Baltimore, was also withheld from the hearing examiner. This would sufficiently demonstrate that a dispute with the adverse employment decision was filed, however, due to the determination being made that I was being medically disqualified under the NFPA standards, the decision would not be overturned. The process prescribes that once that determination is made by the City of Baltimore, more specifically, by the medical expert for the City the Medical Director of PSI, the member must file an application for retirement benefits from the Fire & Police Employees Retirement System of Baltimore City. If the member is aggrieved by the determination of a hearing examiner, the only avenue of relief is to file an appeal for review of the administrative decision to the Circuit Court for Baltimore City. I filed the appeal in a timely manner and immediately thereafter, had surgery to fuse my spine together. As I was recovering from the extensive spinal surgery, I could not effectively prosecute the appeal in a timely manner and it was dismissed. While the Court contends that notice was sent, I never received it. I was made aware of the dismissal and once that information became known, I immediately petitioned the Court to reopen the appeal. Support for this request was demonstrated by the fact that I was under a medical disability, as anyone would who just had surgery on their spine would be and could not have possibly pursued the litigation, as I was representing myself pro se in the matter. The Circuit Court denied that request.
Rule 55-57 of the Civil Service Commission.
The fraud was supported in the realm of the federal court
I reported the allegations of the Baltimore City Solicitor’s misconduct at a hearing before the United States District Court on my Motion to Compel Discovery, due to the Baltimore City Solicitor’s refusal to provide it, and that the affidavit was fraudulent. In the transcript from that hearing, the City Solicitor makes several misrepresentations that only furthered their fraud, or at the very least, sufficiently support the allegations made. Beginning on page 8, the Solicitor contended that I did not file timely complaints to various agencies in an effort to exhaust the administrative remedies available prior to filing the action in the court. As aforementioned, Civil Service Rule 57 that requires that if a dispute with an adverse employment action exists, an employee must file it with the Civil Service Commission within 5 days of the date of that action. This is not applicable in cases where firefighters are disqualified from the performance of their duties due to suffering a disability. The fact that the medical director for the City of Baltimore has the final discretion over the duty status of members returning from duty after suffering Line of Duty injuries renders that process moot, as the medical expert for the Civil Service Commission, a Baltimore City agency, is also the medical director for the City of Baltimore.
In the transcript, beginning on page 9, the City Solicitor states:
US District Court transcripts
MS. WILLIS: “Well, let me dispose of the MD Declaration of Rights claim under Article 24. That’s the easiest one to get rid of because in the State of Maryland when these claims arose, there was no private right of action. So, first of all, he did not register his complaint with any fair employment practice agency, whether state or federal or local and even had he done so, he would not have the authority to proceed on his own under that statute. There does now exist that right. But there didn’t at the time when these occurrences took place.”
This allegation is false and demonstrates the intent of the Baltimore City Solicitor to restrict me from being able to properly present my case. I absolutely did file complaints with many agencies of the City of Baltimore.

I was deemed to be medically disqualified from my duties due to an injury that was suffered in the Line of Duty. As the above process that is prescribed by Civil Service Commission Rule 57 is not applicable in this case, as sufficiently supported in the aforementioned, a member can only file an application for retirement benefits. If the member is aggrieved with the determination of the hearing examiner, an appeal to the Circuit Court is the only appropriate avenue of relief that a firefighter can pursue. As stated, I had undergone surgery to fuse my spine and could not properly pursue the appeal because I was actively recovering from the surgery and I was representing myself in the appeal. The adverse employment action cannot occur until the appeal is decided by the court.

The City Solicitor continues to assert that: (line 17, page 9)
MS. WILLIS: “With reference to the procedural due process and equal protection claim, again just as with the ADA claims, Rehabilitation Act claim, the Fair Employment Practices claim, the contract violation, there is an obligation under the Fourteenth Amendment that there is at least an effort by the aggrieved party to try to gain relief, not just go to federal court. There were many opportunities for Mr. Vaeth both through his employment with the City and through his relationships with the police and fire pension retirement system. He chose not to exercise any of those rights and then sat on those rights for depending on how you look at it, from five to sixteen years. And his initial complaint is that he was injured in the line of duty 1996. If we go back that far, we would never be allowed to argue that somebody had not exhausted their administrative remedies or they had not been sitting on their rights.”
THE COURT: “Also, with respect to - - there’s still an exhaustion requirement even as to wrongful termination under Maryland Law?”

MS. WILLIS: “Not so much under Maryland Law. He’s classified as a breach of contract violation. And I interpreted that to mean that what he meant was that there was a violation of the contract that his Union has with the City of Baltimore. It wasn’t a wrongful termination claim. I am just making an analogy that way. Under the contract he had with the City of Baltimore, that his Union had with the City of Baltimore, he was obligated within 5 days of the time that he knew he was being terminated to make a claim with his union and they were supposed to carry that forward. He never made that claim. Again, I’ve done an exhaustive search and was not able to encounter any evidence that he made that claim.”
THE COURT: “Was there ever an appeal of any of these administrative decisions to the Circuit Court for Baltimore City?”
MS. WILLIS: “There was an appeal made for the first request for disability retirement where disability retirement was granted but not for the special line of duty disability. It was granted for non-line of duty disability and Mr. Vaeth for whatever reason while he filed an appeal, he never pursued it and it was withdrawn. The second time around he also made an effort to file an appeal. This would have been the 2003 decision and he never acted on it and it was withdrawn by the court for non-process.”
THE COURT: “And with respect to the Maryland Fair Employment Practices Act claim, you have specifically noted that it must be filed within 6 months of the occurrence alleged.”
MS. WILLIS: “Yes.”

The City Solicitor’s assertion that there was a mysterious process that firefighters have to follow when they are determined to be medically disqualified from the performance of their duties by the City’s medical director is absurd, since not even the firefighter’s personal doctor can override that determination. I did file a grievance with my union representative in a timely manner over the issue of it being deemed a Non-Line of Duty injury, but despite the exhaustive searches conducted by two individuals with demonstrated knowledge of employment practices, the City Solicitor, who as a lawyer for the Mayor would be fundamental to the duties of that office and the Division Chief of Administration and Support for the Baltimore City Department, who would have to demonstrate knowledge of employment matters related to firefighters, evidence of this could not be found. It appears that those exhaustive searches never included contacting my union to ascertain this fact. I tried to obtain all of the evidence required to overcome this but was refused by the City Solicitor. 

The City Solicitor then refers to this as if it was a “wrongful termination” claim and goes on to assert that a dispute had to exist, when no dispute could exist until a determination was made by the hearing examiner. The only individual that can overturn the determination of the medical director for the City of Baltimore is the hearing examiner and if necessary, this Court. To characterize this process as something that was required can only be seen as a way for the City of Baltimore to create obstacles for firefighters who are disabled from the performance of their duties and is absurd. When I filed my grievance to dispute the incorrect classification of this as a Non-Line of Duty injury, my union representative explained that the action was being taken due to the NFPA standards disqualifying me from my duties for the number of surgeries performed. It was further explained that the next injury that could occur would be catastrophic, as my physical health relating to my back had been compromised by not only the surgeries but the infection, as well. As the action was being taken legally, with regard for my future health, there was no dispute until the abuse of discretion demonstrated by the hearing examiner that denied my benefits. A “termination” would indicate that a violation of the rules regarding my employment had occurred that was my fault. There is no evidence of this occurring, so it must be, as the City Solicitor points out, a breach of the Mayor and City Council’s obligations under Article 22 of the Baltimore City Code, which is the provision that establishes a member’s contractual property right to their appointed position. This property cannot be taken away except by due process of law. If it was a “termination” matter, I was never afforded the pre-termination and termination hearings, as mandated by law. This only further demonstrates that due process rights are not upheld by the City of Baltimore.

I was ruled to be not disabled from my duties, as a firefighter for the City of Baltimore by the hearing examiner. While this decision is contradictory to the NFPA standards, the medical director utilized it to disqualify me from the further performance of my duties, I demanded that I be returned to my position, as a firefighter for the City of Baltimore, with all of my seniority in-tact. I made this request to the representative of the Vocational Rehabilitation contractor that was assessing my ability to be employed outside of the fire department. As the hearing examiner’s determination was that I was not disabled from the performance of my duties, and it has not been disturbed upon any appeal to this date, there is nothing that denies me from my contractual right to my position, as is reflected in Article 22 of the Baltimore City Code. For the City to characterize the appeal in the first occurrence to not be pursued and withdrawn, as if no action was taken on it, is a fabrication of the truth that is well known by the City Solicitor. I was reinstated to my duties by the Acting Chief of the Fire Department in response to the appeal filed challenging the hearing examiner’s decision. When I was reinstated, as I did not want to be retired in the first place and never asked for it, the appeal was settled and there was no need to pursue it.

In the second occurrence of the question of an appeal being filed, rather than be factual and relate to the court that I was undergoing extensive spinal reconstruction surgery at the time, the City Solicitor just says that I made an effort but it was withdrawn for non-process. The Office of the City Solicitor was responsible for paying all bills for not only the doctors but the Vocational Rehabilitation professionals that were assessing my ability to be re-employed at the time. They seem bewildered, as to why the appeal was dismissed but knew I was under a medical disability at the time. When questioned by the Court about the occurrence of the second appeal, the City Solicitor again misrepresents the cause for its withdrawal. The following exchange occurs before the US District Court: (page 21, line 16) (EXHIBIT 8)

THE COURT: “Well, in terms of the due process and equal protections claims under the Fourteenth Amendment and the Maryland Declaration of Rights claims, again the law indicates that you are to, you must exhaust administrative remedies first. And apparently, you’ve never filed suit in the Circuit Court for Baltimore City to appeal the administrative decision within thirty days. Is that right?”
MR. VAETH: “I’m sorry?”
THE COURT: “Did you ever timely file an appeal of benefits - - I know that your benefits were denied in 2000 and 2003 after a hearing. And you took an appeal to the panel of hearing examiners. But you never filed the procedure of going to the Circuit Court for Baltimore City directly, did you?”
MR. VAETH: “Yes, sir.”
THE COURT: “I don’t think that you did, did you?”
MR. VAETH: “Yes, sir. I did. I filed an appeal for the first opinion - -  excuse me your Honor.”
THE COURT: “Take your time.”
MR. VAETH: “On the first opinion, I file[d] an appeal on October 16th of 2000. And then on the last claim, the second time I filed it on September the 29th of 2003.”
THE COURT: “But did you ever appeal an administrative decision to the Circuit Court for Baltimore City?”
MR. VAETH: “Yes, sir. That last one. October the 29th – I mean September the 29th decision, your Honor.”
THE COURT: “And you sought judicial review at that time?”
MR. VAETH: “Yes, sir. I have that right here. Your Honor, I’m very sorry.”
THE COURT: “That’s alright. Take your time. See, the issue clearly is, Mr. Vaeth, to timely, first of all, timely file and exhaust your administrative remedies and then timely file a review of denial in the Circuit Court for Baltimore City. Before what judge did you appear in the Circuit Court for Baltimore City?”
MR. VAETH: “I didn’t get to the judge, Your Honor. It was dismissed.”
THE COURT: “It was dismissed because of lack of timeliness. Is that right, Ms. Willis? Is that the basis of it?”
MS. WILLIS: “Yes, sir. It is my understanding.”
THE COURT: “All right, I think that is what I understand it to be. My point is that a state judge on these claims earlier determined that you hadn’t timely filed with that court?”
MR. VAETH: “No, your Honor. He said it was for lack of prosecution. That after the appeal was filed that I hadn’t prosecute[d] it. But I was under a legal disability I thought because I am representing myself in these matters. I never was able to get counsel. So while waiting for that appeal to be heard, I will still subject to have - -  as a matter of fact when that appeal was scheduled to be heard, I had to enter a refusal, file a refusal because of my back on October 15th. The appeal was filed on September 29th. And I went through the treatment process with that. So I wouldn’t have been able to pursue a claim even then. As a matter of fact during that time, I thought it was stayed while I was undergoing surgery and the treatment --.”

The appeal was not dismissed due to it being untimely, as the City Solicitor asserts and goes on the record to provide testimony that it was dismissed for that reason. If the complete medical record and probative evidence was properly introduced by the City Solicitor, that evidence would show that while the appeal was pending, I underwent extensive spinal reconstruction surgery to fuse my vertebrae. This is a willful misrepresentation of the facts by the City Solicitor again.
On the next page, the transcript continues. (line 6)
THE COURT: “Well, you mention that your union representative, I mean, that’s part of what you’re to get out of your union membership, isn’t it? I mean, you have a shop steward or someone who essentially assists you in representing these claims because that’s done in most unions, is it not?”
MR. VAETH: “I would have to bring in the person that testified about the grievance that would even be able to say that I brought the grievance to them to have it looked at.”
THE COURT: “I am not disputing that. I am assuming for sake of argument in terms of how I analyze this under Rule 12(b)(6), I am assuming that what you’re saying is absolutely true. That I am accepting that you contacted your union representative, but for whatever reason it doesn’t appear that the union carried your flag, so to speak. That’s essentially what happened, isn’t it?”
MR. VAETH: “Right, well they said they approached the City and the City denied it.”
THE COURT: “But the union didn’t do any more about it?”
MR. VAETH: “Didn’t do anything else.”
THE COURT: “Apparently, the union on your behalf did not follow the administrative procedures - -.”
MR. VAETH: “No, they didn’t.”
When I filed the grievance to dispute the incorrect classification of this as a Non-Line of Duty injury, my union representative explained that the action was being taken due to the NFPA standards disqualifying me from my duties for the number of surgeries performed. It was further explained that the next injury that could occur would be catastrophic, as my physical health relating to my back had been compromised by not only the surgeries but the infection, as well. As the action was being taken legally, with regard for my future health, there was no dispute until the abuse of discretion demonstrated by the hearing examiner that denied benefits.

The Court demonstrates a impermissible bias towards the Baltimore City Solicitor, as shown when the misconduct was alleged in open court. (page 40, line 18):

THE COURT: “No, I really don’t need to. But I would urge that it certainly seems to me that the and I hold your office in very high regard. Mr. Nilson is now the City Solicitor, correct?”
MS. WILLIS: “Yes, sir.”
THE COURT: “George Nilson. I’ve known Mr. Nilson for years and he is a high-quality individual and I know that his conduct is consistent with the high standards of the City Solicitor’s Office for many years. It’s a very highly respected office and it would seem that to me that even in the wake of a legal victory in federal court which you’ll obviously be getting in the next few days as a result of my written opinion, that somebody ought to follow up with this in terms of fairness and equities, I can only suggest that someone needs to follow up and try to see if they can address Mr. Vaeth’s concerns in another context. You know, the fact that the City prevails in terms of this federal cause of action. I would just urge someone to – in the City government I know can be responsive to these kinds of things and it’s frustrating when you see a citizen whose involved in public service, be it the police, the fire department, or whatever, feeling like they haven’t been treated fairly and I think it’s a bit frustrating, even though you’re certainly right as a matter of law on these matters, Ms. Willis, and it’s very clear in the terms of the limitations period. That’s not to suggest that you haven’t been fair. Again, I’m not judging on the merits. It would seem to me that I believe it’s Chief Goodwin. Is he still Chief of police for Baltimore City?”
MS. WILLIS: “No, and that’s another problem with this case, sir, is Frederick McGrath (the hearing examiner for the Fire and Police Employees Retirement System of Baltimore City) we no longer have contact with him.”
THE COURT: “Yeah…”
MS. WILLIS: “And there have been meetings with the City Solicitor, with the Office of the Mayor, with the President of the City Council, with the new police chief. So, I would just like to say and this is completely off the record that there have been --.”
THE COURT: “All right.”
MS. WILLIS: “—extensive, extensive efforts to accommodate Mr. Vaeth.”
THE COURT: “Okay. Well I hope that somehow this matter can be worked out. But the simple fact is that there’s not a federal cause of action here on these claims and the points and the points the City Solicitor has raised in terms of the lack of timeliness are valid issues and under the law., for the reasons I am going to state in more detail, Mr. Vaeth, in a written opinion, I’ll treat this as a motion to dismiss for failure to state a claim upon which relief can be granted. But with that, I would have made sure that we had almost an hour hearing to give you an opportunity to express your frustration. So, with that this court stands in recess and I’ll be issuing an opinion in the next few days. Certainly, by the middle of next week at the latest and this court stands in recess until 3:30.”

With that exchange with the court, the Baltimore City Solicitor asserted that, “And there have been meetings with the City Solicitor, with the Office of the Mayor, with the President of the City Council, with the new police chief. So, I would just like to say and this is completely off the record that there have been extensive, extensive efforts to accommodate Mr. Vaeth.” All evidence is to the contrary. At no time was an accommodation even attempted. However, the Baltimore City Solicitor was permitted to utter this nonsense and it was accepted by the court without even as much as any evidence to support that assertion whatsoever.

I would like to take this opportunity to demonstrate the “extensive, extensive efforts to accommodate Mr. Vaeth”, as the City Solicitor believes those efforts to be, paying particular attention to the accommodation that was made and is shown in, wherein the Chief was instructed to fire me upon the occurrence of my reinstatement in 2001. When this evidence was brought forth, the City Solicitor explained that former Chief Goodwin was fired and his credibility was in question. When Chief Goodwin announced his retirement from the department, he disclosed that it was due to the illness of a family member.

Evidence that is in the City of Baltimore’s control, in the form of my employment file, would show that I requested that if I was to be disqualified from the further performance of my duties by the medical director under the standards adopted by the City of Baltimore, that I be assigned to a non-suppression function in the Air Mask Repair Division, as an open spot was pending due to another member’s retirement. All attempts to accommodate this request were being considered by the City of Baltimore until the decision of the hearing examiner. At that point, all requests for accommodation were denied.

I requested that an investigation into the matter be conducted by the Mayor’s Office for Constituent Services of the City of Baltimore. That request was denied by the Baltimore City Solicitor, despite the finding that I was improperly terminated by the Mayor’s Office.
Despite this, many firefighters who have suffered the same fate as I did were accommodated and were afforded the ability to maintain their service for retirement purposes by being placed in light duty positions. This would allow them to remain in the employment of the City, maintain their membership in the retirement system, and work until they reach the service requirement to be eligible for a pension. They have obviously confused themselves with a case involving another member of the fire department and not me. The assignment of firefighters to these light duty positions are done based upon favoritism and not reflective of the requirements of the Americans With Disabilities Act.

I was so diligently being accommodated that an email I received from the Chief of the Baltimore City Fire Department, Mr. William Goodwin, was very telling, as to the true level of cooperation demonstrated by the Baltimore City Solicitor’s Office. Upon my reinstatement after the disputed findings of the first retirement hearing, the Chief shows that he was told to fire me. I was subject to retraining at the Baltimore City Fire Academy and had passed all aspects of that training required to be reassigned to my original duty status. Chief Goodwin demonstrated that he would not violate the law and he reassigned me to my original duty assignment despite this.

When I was ruled by the hearing examiner to not be disabled from my duties, I should have been restored to my duties, under the law, but I was not. Since I am not disabled, as the hearing examiner ruled and that determination is presumptively correct if not disturbed upon appeal, which it has not been, the City of Baltimore would not have any other justification for restricting my right to continue with the performance of my duties.

I have attempted to file criminal charges due to the fraud that was perpetrated on the Court, as there is no civil relief available under the law.

Cassandra Stewart, Mayor's Director of Constituent Services
Chief of Fire Department William Goodwin Email