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Flanary v. Baltimore County

United States District Court, D. Maryland

May 11, 2017

HEATHER FLANARY
v.
BALTIMORE COUNTY, MARYLAND, et al.

          MEMORANDUM

          CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.

         Now pending is a motion for a preliminary injunction. The plaintiff, Heather Flanary (“Officer Flanary”), filed suit against Baltimore County, Maryland; the Baltimore County Police Department; and James Johnson, former chief of police of Baltimore County (“Chief Johnson”), alleging, inter alia, that the defendants violated her rights under the Americans with Disabilities Act (“ADA”). (Compl., ECF No. 1). On October 12, 2016, the same day she filed suit, Officer Flanary also moved for a preliminary injunction, (Mot. Prelim. Inj., ECF No. 2), which Baltimore County and Chief Johnson opposed, (Resp. in Opp'n to Mot. Prelim. Inj., ECF No. 4). The court held a hearing on the preliminary injunction motion that spanned three days.[1] For the reasons set forth below, the court will deny the plaintiff's motion for a preliminary injunction.

         BACKGROUND

         This case arises out of a traumatic incident that occurred on June 5, 2013. Officer Flanary, a police officer, was attacked while on duty, and her partner shot and killed the assailant in response. (Mot. Prelim. Inj. Mem. Law 2, ECF No. 2-1). Pursuant to standard protocol, Officer Flanary was temporarily taken off full duty, but she was subsequently cleared to return to full duty by Dr. Caren DeBernardo (“Dr. DeBernardo”), a consultant for psychological services for the police department. (Resp. in Opp'n to Mot. Prelim. Inj. 5; Hr'g Tr. 285, Mar. 2, 2017). Several months later, on August 27, 2013, Officer Flanary had an emotional reaction to the smell of gunpowder and the sounds of weaponry discharging at a firing range. As a result, she was required to undergo a fitness-for-duty examination with Dr. DeBernardo, which took place on August 29, 2013. (Def.'s Ex. 18, 1). In light of her reaction at the range, Dr. DeBernardo concluded the plaintiff was unfit for full duty as a police officer and recommended that she be assigned to administrative duties and undergo therapy to “cope with the anxiety associated with shooting.” (Id. 6-7). Dr. DeBernardo did not conclude, however, that Officer Flanary suffered from posttraumatic stress disorder (“PTSD”) at that time. (Id.; Hr'g Tr. 294, Mar. 2, 2017).

         In the wake of the evaluation by Dr. DeBernardo, Officer Flanary was taken off full duty and commenced weekly therapy sessions with a private psychologist, Dr. Samuel Yaffe (“Dr. Yaffe”).[2] (Hr'g Tr. 14-15, Feb. 17, 2017). Dr. Yaffe diagnosed her with mild PTSD but cleared her to return to full duty in March 2014. (Id. 15; Mot. Prelim. Inj. Mem. Law 3). Officer Flanary then returned to full duty - she was not required to undergo another fitness-for-duty examination at that time - but she nonetheless elected to continue therapy sessions with Dr. Yaffe until July 2014 “to make sure that [she] was okay.” (Hr'g Tr. 15, Feb. 17, 2017; Pl.'s Hr'g Ex. 1).

         Several months into her therapy sessions, Dr. Yaffe told Officer Flanary that he was not getting paid by the police department, because she had not opened a workers' compensation claim. For that reason, Officer Flanary eventually filed such a claim, stating that she was suffering from lingering symptoms associated with the June 2013 incident. (Hr'g Tr. 22, 47, Feb. 17, 2017; Mot. Prelim. Inj. Mem. Law 4). In connection with her claim, Officer Flanary was evaluated by two experts, Dr. Patrick Sheehan (“Dr. Sheehan”) and Dr. Christiane Tellefsen (“Dr. Tellefson”). In his March 2015 report, Dr. Sheehan concluded that Officer Flanary was fit for duty. However, he also found that she suffered from moderate PTSD, depression, and panic attacks, and he recommended that she attend monthly therapy sessions with Dr. Yaffe for one year. (Def.'s Hr'g Ex. 20, 18; Hr'g Tr. 53-56, February 17, 2017). In her April 2015 report, Dr. Tellefsen also diagnosed Officer Flanary with PTSD, although she stated it was “largely resolved.” Despite “lingering irritability and attitude issues, ” she concluded Officer Flanary had reached “maximum medical improvement” and was “functioning without any occupational impairment from any mental disorder.” (Def.'s Hr'g Ex. 21, 10-11). Dr. Tellefsen did not provide any treatment recommendations.[3] At her June 2015 workers' compensation hearing, Officer Flanary testified that she was having nightmares and flashbacks about the June 2013 incident and that she was having trouble sleeping and concentrating and was more irritable. (Resp. in Opp'n to Mot. Prelim. Inj. 6). But she also claimed these lingering symptoms were not affecting her work as a full duty police officer. (Mot. Prelim. Inj. Mem. Law 5).

         In September 2015, the department ordered Officer Flanary to meet Dr. DeBernardo for another fitness-for-duty examination. (Hr'g Tr. 58-59, Feb. 17, 2017; Pl.'s Hr'g Ex. 9; Def.'s Hr'g Ex. 1). According to Chief Johnson, the department ordered the examination in light of Officer Flanary's testimony during the workers' compensation hearing several months prior and, in particular, her description of ongoing symptoms like lack of sleep and irritability. These symptoms troubled Chief Johnson, because it appeared to undermine his belief that Officer Flanary's mental health had stabilized. Officer Flanary claims she was never told why another examination was necessary, but she opted to cooperate. (Hr'g Tr. 24-25, 59, Feb. 17, 2017).

         The examination took place on September 25, 2015. In her ensuing report, Dr. DeBernardo found that Officer Flanary was fit for full duty. However, she also concluded that Officer Flanary suffered from PTSD and “should return to therapy to address irritability, social withdrawal, sleep disturbance, and intrusive thoughts associated with the incident.” (Def.'s Hr'g Ex. 1, 7).[4] Addressing the need for more therapy, she wrote: “There is concern that if Ms. Flanary is involved in another traumatic incident on the job . . . her symptoms will increase and her functioning will decrease.” (Id.). In sum, Dr. DeBernardo wanted Officer Flanary to remain on full duty, partly because “it was important for her self-esteem to continue working, ” but also believed more therapy would help her deal with the daily stresses of police work. (Hr'g Tr. 312- 13, Mar. 2, 2017). In response to an inquiry from Frances Butcher, chief of police personnel for the Baltimore County Office of Human Resources, Dr. DeBernardo then clarified and expanded on her findings in an October 22, 2015, email to Ms. Butcher and others. In particular, she explained that, in her opinion, the referral for further treatment should be mandatory and treatment should occur on a weekly basis for at least four months. She further stated that Officer Flanary should provide letters from her therapist confirming the start of treatment, active participation in treatment at two months, progress with symptoms at four months, and a letter when her therapist believes Officer Flanary no longer required treatment. (Def.'s Hr'g Ex. 2, 1).

         On November 6, 2015, Ms. Butcher met with Officer Flanary and her supervisors. At that meeting, Ms. Butcher provided Officer Flanary with a copy of the September 2015 report from Dr. DeBernardo. She also explained that Officer Flanary was required to restart therapy in order to remain on full duty. (Hr'g Tr. 62, Feb. 17, 2017; Def. Hr'g Ex. 3). And Ms. Butcher provided Officer Flanary with a form - an “Authorization For Release of Confirmation of Compliance with Treatment” - that asked Officer Flanary to agree to three steps. (Def. Hr'g Ex. 4). First, it stated that Officer Flanary would provide a copy of Dr. DeBernardo's latest report to the doctor who would conduct additional therapy sessions with her - presumably Dr. Yaffe. Second, it would have authorized Dr. Yaffe to confirm with Ms. Butcher that Officer Flanary was complying with the recommendations for treatment/therapy contained in the report by Dr. DeBernardo. Third, it would have authorized Dr. DeBernardo “to discuss [Officer Flanary's] treatment and progress” with Dr. Yaffe, “and with Baltimore County's Office of Human Resources personnel, as needed, regarding [Officer Flanary's] fitness for duty.” (Id.). Officer Flanary opted not to sign this form at the November 6 meeting, because she wanted to review it with her union representative. (Hr'g Tr. 69, Feb. 17, 2017).

         After the November 6 meeting, Officer Flanary attended two therapy sessions with Dr. Yaffe, on November 19, 2015, and December 17, 2015. She also faxed a note to her employer from Dr. Yaffe - dated December 17, 2015 - listing these two sessions and stating that she had been “most cooperative.” (Def.'s Hr'g Ex. 9; Hr'g Tr. 29, Feb. 17, 2017). But Officer Flanary did not return the authorization form. Ms. Butcher then provided Officer Flanary with a revised authorization form, which she hoped would address any concerns Officer Flanary might have related to the exchange of information between Dr. Yaffe and the police department contemplated in the original form. (Def.'s Hr'g Ex. 8; Hr'g Tr. 384-86, Mar. 2, 2017). The revised form again stated that Officer Flanary would provide a copy of Dr. DeBernardo's latest report to the doctor who would conduct additional therapy sessions with her - presumably Dr. Yaffe. Second, it would have authorized Dr. Yaffe “to release confirmation of [Officer Flanary's] attendance to scheduled appointments and estimated time frame necessary to complete the recommendations for treatment/therapy, not to include diagnostic and/or clinical information, ” to Ms. Butcher. Third, it would have authorized Dr. DeBernardo “to discuss [Officer Flanary's] treatment and progress with [Dr. Yaffe], as needed, regarding [her] fitness for duty.” (Def.'s Hr'g Ex. 8).

         By late January 2016, however, Officer Flanary had not signed and returned either the original or the revised form. As a result, the department issued a written order to Officer Flanary stating that she was required to take six steps in order to remain a full duty police officer. (Def.'s Hr'g Exs. 10, 11). On January 28, 2016, Officer Flanary acknowledged receipt of the order but declined to comply with four of the six conditions, claiming they violated her rights under the ADA. (Def.'s Hr'g Ex. 11).[5] In particular, she declined to (1) authorize the Baltimore County Office of Human Resources to send a copy of the September 2015 report from Dr. DeBernardo to Dr. Yaffe; (2) authorize Dr. Yaffe “to disclose [her] attendance or non-attendance to scheduled appointments and time frame necessary to complete the recommendations for treatment, not to include diagnostic and/or clinical information, ” to the human resources department; (3) authorize Dr. Yaffe to correspond with Dr. DeBernardo, including to confirm Officer Flanary had initiated treatment, her “active participation” in treatment at two months, her progress with symptoms at four months, and to notify Dr. DeBernardo when Dr. Yaffe believed Officer Flanary had reached “maximum improvement in treatment”; and (4) participate in a follow-up evaluation with Dr. DeBernardo as scheduled by human resources. (Id.).

         Because she refused to comply with the January 2016 order, Officer Flanary was removed from full duty and placed on desk duty, effective February 1, 2016. (Mot. Prelim. Inj. Mem. Law 8; Resp. in Opp'n to Mot. Prelim. Inj. 13). However, her police powers were not suspended. On February 3, 2016, Officer Flanary filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) and sued for emergency injunctive relief in the Circuit Court for Baltimore County. (Mot. Prelim. Inj. Mem. Law. 8-9). The circuit court entered a temporary restraining order (“TRO”) that same day barring enforcement of the order, and Officer Flanary was returned to full duty. One week later, however, the circuit court denied her request for a preliminary injunction, and Officer Flanary was again taken off full duty and returned to desk duty. (Id. 9).[6] Then, on July 5, 2016, Chief Johnson ordered Officer Flanary to comply with the conditions that had been previously outlined in the January 2016 order within 21 days; failure to do so would result in “disciplinary action.” (Def.'s Hr'g Ex. 12). Officer Flanary refused. On August 1, 2016, the department suspended her police powers and placed her on medical light duty, with pay. (Def.'s Hr'g Exs. 13, 14).

         At all times relevant here, Officer Flanary performed her official responsibilities with distinction. Chief Johnson awarded her the Silver Star Award in recognition of her “courage, valor and bravery” during the June 2013 incident. (Pl.'s Hr'g Ex. 4). She received a favorable performance review for her work from October 1, 2013, until September 30, 2014, and another favorable review for her work from October 1, 2014, until September 30, 2015. (Pl.'s Hr'g Exs. 3, 5). And Officer Flanary was named Officer of the Month for her precinct in January 2015 and then again in October 2015. (Pl.'s Hr'g Exs. 6, 7). In short, she has been an effective police officer.

         LEGAL STANDARD

         To win a preliminary injunction, a plaintiff must demonstrate that (1) she is likely to succeed on the merits; (2) she will likely suffer irreparable harm absent an injunction; (3) the balance of hardships weighs in her favor; and (4) the injunction is in the public interest. Pashby v. Delia, 709 F.3d 307, 320-21 (4th Cir. 2013) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). The plaintiff must satisfy each of these four ...


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