Hoffman v. Baltimore Police Dept., No. CIV. WMN-04-3072.

• Decision Date: 29 June 2005
• Docket Number: No. CIV. WMN-04-3072.
• Citation: 379 F.Supp.2d 778
• Parties: Howard B. HOFFMAN v. BALTIMORE POLICE DEPT. et al.
• Court: U.S. District Court — District of Maryland

379 F.Supp.2d 778

Howard B. HOFFMAN v. BALTIMORE POLICE DEPT. et al.

No. CIV. WMN-04-3072.

United States District Court, D. Maryland.

June 29, 2005.

COPYRIGHT MATERIAL OMITTED

William Haines Owens, Owens and Smouse LLC, Hunt Valley, MD, for Howard B. Hoffman.

Brian Travis Tucker, David William Kinkopf, David G. Sommer, Gallagher Evelius and Jones LLP, Baltimore, MD, for Baltimore Police Dept. et al.

MEMORANDUM

NICKERSON, Senior District Judge.

Before the Court is Defendants' Motion To Dismiss. Paper No. 13. Also pending is Defendants' Motion To Seal the Entire Record. Paper No. 14.¹ Both motions are fully briefed. Upon a review of the pleadings and the applicable case law, the Court determines that no hearing is necessary, Local Rule 105.6, and that the motion to dismiss will be granted in part and denied in part, and the motion to seal will be denied in its entirety.

I. FACTUAL BACKGROUND

Plaintiff was employed briefly by the Baltimore City Police Department [BPD] as an attorney concentrating in employment law. He alleges that while so employed he was discriminated against, and eventually terminated, on the basis of his race (Caucasian). Although embellished somewhat in Plaintiff's opposition to the motion to dismiss, the allegations in Plaintiff's Amended Complaint (upon which the decision of the Court on a motion to dismiss must be based) are as follows.

Plaintiff was interviewed for his position by BPD's Chief of Legal Affairs, Sean Malone, and Chief of Human Resources, Daniel O'Conner. Malone and O'Conner, both Caucasian males, recommended that Plaintiff be employed and he began work in February 2002. Shortly after Plaintiff's employment, Malone left the position of Chief of Legal Affairs and was replaced by Defendant Sheila Anderson, who is African-American. At all times relevant to this action, Defendant Thurman Zollicoffer served as the City Solicitor,² Defendant Donald Huskey as Deputy City Solicitor, and Defendant Joan Thompson as Director of BPD's Equal Employment Opportunity Unit, the unit within BPD that investigates complaints of employment discrimination [the EEO Unit]. While Plaintiff did not name her as a defendant in this action, he alleges that Deborah St. Lawrence, another attorney in the City Law Department, joined in his harassment. Zollicoffer, Huskey, Thompson, and St. Lawrence are all African-American.

The harassment of Plaintiff is alleged to have taken a number of forms. Plaintiff asserts that Defendants forced him to physically relocate his office numerous times without justification, subjected him to intense scrutiny, assigned him a disproportionately heavy case load, and encouraged others to file false or exaggerated complaints about him. Plaintiff avers that African-American hires were not similarly treated.

According to the allegations in the Amended Complaint, Plaintiff's termination was the direct result of his criticism of the EEO Unit. In the course of defending a discrimination suit against BPD brought by Caucasian police officers, Plaintiff made certain observations and rendered advice that he avers was at odds with the opinions of his supervisors. Plaintiff took his concerns to Lt. Col. George Mitchell of BPD who, in turn, spoke to Defendant Thompson. Plaintiff claims that, in retaliation for his raising issues related to her unit, Thompson began to spread false information about Plaintiff. He claims she wrote a letter to Defendant Anderson falsely asserting that Plaintiff was unfamiliar with basic elements of discrimination law. Plaintiff also alleges that Anderson stated that Plaintiff had told her staff to knowingly violate the law and that she believed that Plaintiff was planning on "throwing" the pending suit against the BPD in order to support his criticisms of the EEO Unit.

On October 14, 2003, Defendants Zollicoffer and Huskey suspended Plaintiff for five days. Plaintiff was told that his suspension was based upon "`complaints from the client'" that Plaintiff had acted in an "`abusive and unprofessional'" manner. Am. Compl. ¶ 27. Plaintiff was also ordered to apologize to the client, both orally and in writing, for his offending behavior.

Plaintiff served the suspension but did not issue the apology. On November 19, 2003, Defendant Anderson entered Plaintiff's office at about 10:00 a.m. and demanded that he produce the written apology. Plaintiff indicated that he needed more information as to whom the apology should be addressed and the criteria by which it would be judged. Plaintiff also explained that he had retained an attorney. By 4:30 that afternoon, Plaintiff had been fired by Defendants Zollicoffer and Huskey.

Within a month of his termination, Plaintiff filed charges with the EEOC. After receiving his right to sue letter, Plaintiff filed this action on September 24, 2005. Plaintiff originally named only Defendant Thompson and BPD as defendants and the Complaint included just five counts. Plaintiff subsequently filed an Amended Complaint that presents a hodgepodge of state tort claims, state constitutional claims, and federal claims under Title VII, 42 U.S.C. § 1983, and 42 U.S.C. § 1985 — 24 counts in total. In addition to the individuals Thompson, Anderson, Huskey, Zollicoffer, and Tyler, Plaintiff names BPD and the Mayor and City Council for the City of Baltimore, Maryland [the City] as defendants. Defendants have moved to dismiss the Amended Complaint in its entirety.

II. LEGAL STANDARD

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In considering such a motion, the court is required to accept as true all well-pled allegations in the Complaint, and to construe the facts and reasonable inferences from those facts in the light most favorable to the plaintiff. See Ibarra v. United States, 120 F.3d 472, 473 (4th Cir.1997). "To survive a motion to dismiss, Plaintiff[s] must have alleged facts that show that they are entitled to relief on their substantive causes of action." In re Criimi Mae, Inc. Securities Litigation, 94 F.Supp.2d 652, 656 (D.Md.2000).

III. DISCUSSION

Defendants raise no less than 16 different challenges to all or parts of the Amended Complaint. Because Defendants' last challenge is potentially the broadest in scope, the Court will begin there.

A. Preliminary Considerations

1. Implications of Attorney/Client Privilege

Defendants argue that the entire Amended Complaint must be dismissed because it necessarily and improperly discloses privileged attorney-client communications. Defendants' primary support for this argument comes from a trio of Illinois state court decisions holding that in-house attorneys are precluded from bringing wrongful discharge actions against their former employers: Balla v. Gambro, 145 Ill.2d 492, 164 Ill.Dec. 892, 584 N.E.2d 104 (1991); Ausman v. Arthur Andersen, LLP, 348 Ill.App.3d 781, 284 Ill.Dec. 776, 810 N.E.2d 566 (2004); and Herbster v. North American Co. for Life & Health Ins., 150 Ill.App.3d 21, 103 Ill.Dec. 322, 501 N.E.2d 343 (1986). The Illinois courts base this preclusion on the "chilling effect on the communications between the employer/client and the in-house counsel" that would result were such suits allowed. Balla, 164 Ill.Dec. 892, 584 N.E.2d at 109. Defendants also find support in a few decisions from other state courts that restrict, without completely barring, the ability of in-house counsel to assert wrongful discharge claims. See, e.g., General Dynamics v. Superior Court, 7 Cal.4th 1164, 32 Cal.Rptr.2d 1, 876 P.2d 487 (1994) (en banc); GTE Products Corp v. Stewart, 421 Mass. 22, 653 N.E.2d 161 (1995).

One factor readily distinguishing the Illinois cases from this Maryland case is the difference in the ethics codes that govern attorney conduct in the respective states. Rule 1.6 of the Maryland Rules of Professional Conduct, which addresses those situations in which confidential client information can be revealed, specifically provides that a lawyer may reveal that information "to the extent the lawyer reasonably believes necessary ... to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client...."³ Md. Rule of Prof. Conduct 1.6. Where attorney conduct is governed by a rule that allows disclosure of client secrets "to establish a claim or defense" against the former client, courts have shown more willingness to allow claims such as those presented here to go forward. See, e.g., Spratley v State Farm Mut. Auto. Ins. Co., 78 P.3d 603 (Utah 2003); Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173 (3rd Cir.1997).

In Spratley, two in-house attorneys for an insurance company claimed that they had to resign their employment because of pressure from the insurance company to engage in unlawful and unethical conduct. They then sued their former employer, supporting their claims with confidential attorney-client communications. In overturning the trial court's ruling that this confidential information could not be disclosed to support the plaintiffs' claim, the Utah Supreme Court focused on the portion of Utah Rule of Professional Conduct 1.6 which is identical to the Maryland Rule quoted above. Citing ethics opinions from the American Bar Association and the Oregon State Bar, as well as other state court decisions interpreting Rule 1.6, the court concluded, "[d]espite the countervailing considerations outlined in the opinion of the court in Balla, the plain language of Rule 1.6 and the policy considerations outlined in other cases weigh in favor of allowing disclosure, in a limited fashion, of confidential client information in a suit by former in-house counsel for wrongful discharge." 78 P.3d at 609. See also Crews v. Buckman Labs. Int'l, Inc., 78 S.W.3d 852 (T...