United States District Court, D. Maryland, Northern Division
September 16, 2014
LOUIS H. HOPSON, et al., Plaintiffs,
CITY OF BALTIMORE, et al., Defendants.
WILLIAM D. QUARLES, Jr., District Judge.
On June 18, 2009, Charles H. Carter, and others, entered into a Settlement Agreement with the Baltimore Police Department ("BPD") and the Mayor and City Council of Baltimore ("City"). Carter, acting pro se, filed a motion for summary judgment against the BPD and the City (collectively, the "Defendants") for violating the Settlement Agreement. Pending is Carter's objection to Magistrate Judge Beth P. Gesner's Report and Recommendation ("R&R"). For the following reasons, the Court will adopt Judge Gesner's R&R.
On December 6, 2004, Carter, and others, sued the BPD and the City for engaging in a pattern and practice of discrimination against African American police officers. See ECF No. 1 ¶¶ 1-2. On June 18, 2009, Carter, and 14 other plaintiffs, entered into a Settlement Agreement with the Defendants. See ECF No. 306 at 3. On July 13, 2009, this Court approved the Settlement Agreement. See ECF No. 307. The Settlement Agreement provides:
1. Confidentiality: Plaintiffs' personnel files and the disciplinary proceedings reflected therein are confidential and limited from disclosure by various laws. The BPD reiterates its standard practice,  and agrees it will be followed with regard to Individual Plaintiffs, and that, except to the extent required by law, the BPD will respond to requests for employment history and information by disclosing dates of service only, and will not disclose any Individual Plaintiff's disciplinary history or whether the end of service was as a result of termination or resignation or otherwise.
ECF No. 306 at 8.
On January 19, 2012, the Maryland Transit Administration ("MTA") sent Carter a letter informing him that MTA had denied his employment application "based upon [his] failure to meet MTA standards during the background investigation." ECF No. 311-6 at 1. In a February 22, 2012 letter, MTA stated:
According to our records, we received your blank Personal History Statement (PHS) and request to withdraw on July 2, 2011. Although you sent in your request, the department conducts a preliminary background check based on information supplied in your Pre-Investigation Questionnaire.... Although you withdrew from the process, the information you provided or failed to provide in the Pre-Investigation Questionnaire and our background checks disqualified you from further consideration.
On June 11, 2013, Carter signed an Authorization for Release of Information to the Department of Public Safety and Correctional Services ("DPSCS") ("Public Safety Release"). See ECF No. 325-3 at 23. The Public Safety Release provides:
I[, ] Charles Henry Carter[, ] [...] hereby authorize a review and full disclosure of all records, or any part thereof, concerning myself to any duly authorized agent of the [DPSCS], whether the said records are public or private[.] The intention of this authorization is to provide information which will be utilized for investigation resource material regarding employment with the Department...
I authorize the full and complete disclosure of... employment and reemployment records including background investigation reports, efficiency ratings, accidents or injuries sustained in the course of employment; and any and all records of any arrest, conviction, or incarceration.
On June 18, 2013, BPD's Human Resources Section sent Carter a letter stating that "there have been no inquiries into your employment history with [BPD] from any outside agencies or entities... since... April 2005." ECF No. 311-10 at 1.
On August 22, 2013, the DPSCS sent Carter a letter informing him that he had not been selected for a position as a Parole and Probation Agent I, but may be "consider[ed] for an Agent I position when the need arises." ECF No. 311-11 at 1.
On August 27, 2013, Carter received a letter from Mark H. Grimes, Esq., Chief Legal Counsel for the City of Baltimore, Department of Law. See ECF No. 318-1. Grimes informed Carter that his personnel folder contained "two separate consent forms" wherein Carter "authorized an agent from two different law enforcement organizations to review [his] entire personnel folder." Id. Therefore, Grimes stated, "BPD allowed [Carter's] folder to be reviewed on two occasions." Id. 
On October 16, 2013, Carter moved for Summary Judgment for Violation of Civil Court Order. ECF No. 311. On November 21, 2013, the BPD and the Mayor and City Council of Baltimore separately opposed the motion. ECF Nos. 318, 319. On December 2, 2013, Carter replied. ECF Nos. 321, 322.
On December 6, 2013, Carter's motion was referred to U.S. Magistrate Judge Gesner. ECF No. 323. On July 23, 2014, Judge Gesner held a hearing. ECF No. 341. On August 1, 2014, Judge Gesner issued an R&R recommending that Carter's motion be denied. ECF No. 345. On August 11, 2014, Carter objected to the R&R. ECF No. 346.
A. Standard of Review
Under the Magistrate Judges Act, 28 U.S.C. § 636, a district judge may designate a magistrate judge to conduct hearings (if necessary) and report proposed findings of fact and recommendations for action on a dispositive motion. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); see also Local Rule 301.5(b) (D. Md. 2011).
A party aggrieved by a magistrate judge's R&R about a dispositive motion must file "specific written objections to the proposed findings and recommendations" within 14 days. Fed.R.Civ.P. 72(b)(2). The reviewing judge "shall make a de novo determination of those portions of the [magistrate judge's] report... to which objection is made." 28 U.S.C. § 636(b)(1)(C). The judge "may accept, reject, or modify, in whole or in part, the findings or recommendations, " and "may also receive further evidence or recommit the matter to the magistrate judge with instructions." Id.
B. Carter's Motion
Carter asserts the Defendants violated the Settlement Agreement's Confidentiality provision by providing potential employers with his full personnel file instead of only his dates of service. See ECF No. 311-1 at 7. BPD asserts it did not violate the Settlement Agreement because Carter's personnel file was provided to two prospective employers based on Carter's execution of the Public Safety and Sheriff's Releases (collectively, the "Releases"). See ECF No. 318 at 5. The City asserts that the Confidentiality provision applied to BPD, not the City, and there is no evidence it violated the Confidentiality provision. See ECF No. 319-1 at 4-5.
The Court may impose sanctions for civil contempt "to coerce obedience to a court order or to compensate the complainant for losses sustained as a result" of non-compliance with the court order. See In re General Motors Corp., 61 F.3d 256, 258 (4th Cir. 1995) (internal citations and quotation marks omitted). To establish civil contempt, a movant must show by clear and convincing evidence:
(1) the existence of a valid decree of which the alleged contemnor had actual or constructive knowledge; (2) that the decree was in the movant's favor; (3) that the alleged contemnor by its conduct violated the terms of the decree, and had... at least constructive knowledge of such violations; and (4) that the movant suffered harm as a result.
Ashcraft v. Conoco, Inc., 218 F.3d 288, 301 (4th Cir. 2000) (internal citations and quotation marks omitted). The purpose of civil contempt sanctions is remedial. See Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 822 (4th Cir.2004); Buffington v. Baltimore Cnty., Md., 913 F.2d 113, 133 (4th Cir.1990).
There is no doubt that the Settlement Agreement was a valid decree executed in Carter's favor. The issues here are whether the BPD or the City knowingly violated the terms of the Settlement Agreement and whether Carter has shown harm as a result of the alleged violation.
1. The City
Understandably, Carter has not alleged facts showing that the City violated the Settlement Agreement's Confidentiality provision: the Confidentiality provision is directed only at the BPD: "BPD reiterates its standard practice..."; "BPD will respond to requests for employment history and information...." ECF No. 306 at 8. Carter apparently seeks to hold the City vicariously liable for BPD's conduct, asserting that the City "factually and actually" has control over the BPD and, despite notice of BPD's alleged violations, failed to take remedial action. See ECF No. 346 at 6 ¶ 2, 7 ¶ 3. Under Maryland law, however, the City is not vicariously liable for the BPD's actions. See, e.g., Chin v. City of Baltimore, 241 F.Supp.2d 546, 549 (D. Md. 2003) (no respondeat superior liability of Baltimore City for acts of BPD officers). Thus, Carter has not shown the City knowingly violated the Settlement Agreement.
Carter asserts the Settlement Agreement provision that "BPD will respond to requests for employment history and information by disclosing dates of service only" removes requests for his employment history from BPD's "standard practice, " which is, to release the employee's full record when presented with a valid release. ECF No. 346 at 8; see also ECF No. 325-5 at 1. BPD argues the Settlement Agreement required it to follow its "standard practice." ECF No. 345 at 4; see also ECF No. 318 at 5.
The terms of the Settlement Agreement appear to be in conflict. The Settlement Agreement states that the BPD will follow its standard practice (full disclosure upon presentation of release) ("standard practice provision") and that BPD will only disclose dates of service ("dates of service provision"). See ECF No. 306 at 6. It follows that, absent a valid release, the BPD could not lawfully provide full disclosure, and would be limited to disclosing dates of service. Here, however, Carter has executed the Public Safety and Sheriff's Releases. Determining whether there is evidence of a violation, therefore, is a matter of contract interpretation: the Court must determine whether, by signing the Releases, Carter waived the dates of service provision, permitting the BPD to follow the standard practice provision. See United States v. ITT Cont'l Baking Co., 420 U.S. 223, 238 (1975) ("[A] consent decree or order is to be construed for enforcement purposes basically as a contract.").
Under Maryland law, contract interpretation is a question of law. See Wash. Metro. Area Transit. Auth. v. Potomac Inv. Props., Inc., 476 F.3d 231, 234 (4th Cir. 2007). Contract provisions may be waived by subsequent agreement or conduct notwithstanding any contract provision that modifications be in writing. See Richard F. Kline, Inc. v. Shook Excavating & Hauling, Inc., 885 A.2d 381, 390 (Md. Ct. Spec. App. 2005); see also Freeman v. Stanbern Const. Co., 106 A.2d 50, 54-55 (Md. 1954) (clauses may be waived by implication or agreement).
By signing the Public Safety Release authorizing "full disclosure of all records" to DPSCS almost four years after he signed the Settlement Agreement, Carter arguably waived the dates of service provision, permitting the BPD to provide full disclosure. Accordingly, Carter has not shown that BPD knowingly violated the Settlement Agreement.
However, even if it had, Carter has not shown resultant harm. The August 22, 2013 letter from DPSCS to Carter did not state that he was denied employment because of negative information provided by BPD, and stated it would consider him for a future position. See ECF No. 311-11.
The Sheriff's Release predates the Settlement Agreement. See ECF No. 325-4. By failing to withdraw the Sheriff's Release, arguably Carter impliedly waived - as to the Baltimore Sheriff's Department - the dates of service provision. Carter has not presented evidence that he was denied employment by the Baltimore Sheriff's Department (whether on the basis of an impermissible viewing of his employment history or otherwise). Thus, the requirement that Carter show harm has not been met.
Accordingly, the Court finds that Carter has not presented clear and convincing evidence of a knowing violation of the Settlement Agreement by BPD; nor has he shown resultant harm.
For the reasons stated above, Judge Gesner's R&R will be adopted. Carter's motion for summary judgment for violation of a civil court order, construed as a motion for contempt of a court order, will be denied.