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Priester v. Board of Appeals of Baltimore County

Court of Special Appeals of Maryland

July 27, 2017

THEODORE PRIESTER, JR.
v.
BOARD OF APPEALS OF BALTIMORE COUNTY

         Circuit Court for Baltimore County Case No. 03-C-15-012485

          Wright, Nazarian, Arthur, JJ.

          OPINION

          Arthur, J.

         A Baltimore County fire captain sexually harassed numerous female subordinates and created a hostile work environment in which employees were afraid to report his misconduct. After the captain's conduct came to light, the fire department terminated his employment. He applied for retirement benefits.

         The Board of Trustees of the Employees' Retirement System denied the captain's application on the ground that he had not rendered "honorable and faithful service as an employee, " a condition for the receipt of benefits under the Baltimore County Code. The Baltimore County Board of Appeals affirmed that determination, and the Circuit Court for Baltimore County affirmed the Board of Appeals.

         The captain appealed to this Court. We affirm.

         Factual and Procedural History

         A. Captain Priester

         Theodore C. Priester, Jr., joined the Baltimore County Fire Department in 1982. He received many commendations throughout his career, including a Silver Star for heroic conduct in fighting a fire. He became a lieutenant in 1992 and a captain in 1999. By March of 2013, he had acquired the rank of Fire Captain and was in charge of Fire Station 18 in Randallstown.

         B. The "Bathroom Incident"

         At Station 18 the downstairs bathroom had been designated as the women's bathroom. Notwithstanding that designation, Captain Priester would sometimes use the downstairs bathroom.

         Kathleen Duncan-Fulton, an Emergency Medical Technician (or "EMT"), was sometimes responsible for cleaning the women's bathroom. On several occasions, she had complained to a superior officer about Captain Priester's use of the women's bathroom. According to EMT Duncan-Fulton, Captain Priester would not flush the toilet or clean up after himself, and he would leave the bathroom in what she called a "disgusting" condition.

         On the afternoon of March 15, 2013, Captain Priester, who is over six feet tall and weighs more than 300 pounds, leaned over EMT Duncan-Fulton in the station's kitchen and, in a loud voice, demanded to know whether she had complained about him using the downstairs bathroom. She said, yes. He responded: "This is my house, and I'll shit wherever I want." He added that she was "supposed to clean the bathroom and like it." He threatened to remove her from duty if she refused to clean the bathroom. A number of employees witnessed some or all of this exchange.

         EMT Duncan-Fulton told Captain Priester that he was creating a hostile work environment because of his tone of voice. He ordered her to meet him in his office.

         When EMT Duncan-Fulton met with the captain in his office a few minutes later, he denied that he had yelled her. He said: "[E]verybody here's going to be a witness that I didn't yell at you the way you're saying I did." She responded: "You're absolutely right. They'll take your side because you let them do whatever the fuck they want." He told her to leave, and she did. EMT Duncan-Fulton was extremely upset by Captain Priester's aggressive demeanor and his threat to remove her. She called a superior officer, Captain Thomas Hoffman, who intervened and obtained an apology from Captain Priester.

         On the following day, EMT Duncan-Fulton met with Captain Hoffman and Captain Franklin E. Penn Jr. In that meeting she reported that Captain Priester had begun to complain about her job performance after she resisted his unwelcome advances.

         C. The Investigation

         EMT Duncan-Fulton's complaint prompted an internal investigation. In the meantime, on March 22, 2013, Captain Priester was summarily suspended from duty.

         The investigation uncovered allegations that Captain Priester had sexually harassed numerous female employees, as well as at least one civilian. The alleged harassment occurred while the captain was on duty and, in many instances, in the presence of other employees.

         At the close of the investigation, on April 9, 2013, the fire department issued a notification of charges, which summarized the allegations against Captain Priester. In total, the captain was charged with 19 violations of the fire department's rules and regulations and two violations of County rules. The charges included violations of multiple departmental regulations concerning a captain's duty, a violation of the fire department's fair practices policy, and a violation of the County's sexual harassment policy.[1]

         D. The Termination of Captain Priester's Employment

         The Department's Administrative Hearing Board held a hearing on the charges against Captain Priester on April 30, 2013. Although the captain had initially protested that he had "been falsely accused" of sexually harassing female employees, he advised the board that he wished to plead no contest and to submit a letter expressing remorse.

         In his letter Captain Priester expressed regret and remorse, apologized "for any negative light shown on the department, " and asked for "due consideration" for his faithful service throughout his career. He wrote:

Obviously, had any person advised me that they took offense to personal actions, comments, or gestures I would have immediately ceased and desisted. I have always been of a joking and flirtatious character. The Fire Department has changed drastically over these past 30 years. Sadly I must admit, that while climbing the infamous "Dinosaur List" the department has left me behind. I realize that the responsibility falls completely to me to keep up with the changing times. I am especially accountable in my rank of Fire Captain and held to a higher standard.

         At another point in the letter, Captain Priester referred to the "horseplay, hazing, practical jokes, and basic clowning around of the 'old fire department.'" He expressed his desire to be allowed to retire.

         The board found Captain Priester guilty of 19 of the 21 charges against him and recommended that his employment be terminated. The Fire Chief, John J. Hohman, accepted that recommendation.

         On the following day, May 1, 2013, Captain Priester exercised his right, under the County Code, to appeal the decision to terminate his employment. In a letter to Chief Hohman, Captain Priester asked for permission to retire. While apologizing "for any embarrassment" that he had caused the department and expressing his understanding that he "must face some form of discipline, " Captain Priester appeared to question the bona fides of his accusers:

[I]f one single individual had ever said they were offended I assure you behavior modification would have been immediate. Certainly an individual should not be able to hold-back on issuing a complaint (2 years) until such time [as] they are in trouble. Also to have the same individual recruit additional complainants and have identical language is suspect as well.

         The department formally terminated Captain Priester's employment on May 16, 2013.[2]

         E. The Application for Retirement Benefits

         On July 31, 2014, Captain Priester filed an application for retirement in which he sought pension benefits. The Trustees of the Employees' Retirement System met on December 9, 2014, and voted 4-1 to deny the application.

         Writing for the Trustees, the Director of the County's Office of Budget and Finance explained that, to qualify for retirement benefits (i.e., "a service retirement allowance") under the Baltimore County Code, an employee must accumulate a certain period of "creditable service." See Balt. County Code § 5-1-213. The Code defines "creditable service" as "prior service, " such as service in the armed forces of the United States, plus "membership service." Id. § 5-1-201(i). The Code, in turn, defines "membership service" as "honorable and faithful service as an employee rendered while a member of the retirement system." Id. § 5-1-201(p). The Trustees reasoned that Captain Priester's service "was not honorable and faithful and is therefore not creditable towards a retirement allowance."

         F. Appeal to the Baltimore County Office of Administrative Hearings

         Captain Priester exercised his right to appeal the Trustees' decision to the Baltimore County Office of Administrative Hearings ("OAH"). The OAH held four days of hearings between February 23, 2015, and May 28, 2015.

         1. EMT Duncan-Fulton's Testimony

         At the hearing, EMT Kathleen Duncan-Fulton testified that, after Captain Priester arrived at Fire Station 18 in 2010, he would periodically approach her from behind while she was washing dishes or working at a computer. He would "nibble" on her neck and ear, use crude language to tell her that he thought that she was sexually aroused, and make other lewd and sexually suggestive comments. On other occasions, when he was in a room with her and other employees, he would call her name, put his hands to his face, and make a crude gesture that is meant to signify cunnilingus.

         She said that Captain Priester would engage in this behavior "at least once a day on the two days that [she] would see him and over a span of several months." After several months, she told him to stop. Shortly thereafter, he began to complain about her job performance.

         EMT Duncan-Fulton testified that she did not immediately report the harassment because she had been employed with the department for only nine or ten years, as opposed to Captain Priester's 30 years. In her view, it was "a little difficult to think that somebody [was] going to take [her] side and believe [her]." After the "bathroom incident, " however, she "finally had enough" and decided to notify Captains Penn and Hoffman.

         Baltimore County submitted a written statement that EMT Duncan-Fulton made to the investigators. The statement corroborated the EMT's testimony and included additional details. For example, she wrote that when Captain Priester would approach from behind while she was working, he would press her against the counter. She also wrote that she attempted not to "enter a room if he was alone" and that she "would leave the room if Capt. Priester appeared to be approaching [her]."

         2. The Testimony of Captains Penn and Hoffman

         Captains Penn and Hoffman corroborated EMT Duncan-Fulton's account of previous complaints about Captain Priester's misuse of the women's bathroom. Both captains said that they had never had any problems with EMT Duncan-Fulton's job performance.

         3. Lieutenant Stevens's Testimony

         Lieutenant Michelle Stevens testified that Captain Priester was her captain for six to eight months when he was assigned to a different station. She testified that while she was working at a computer, Captain Priester would "put his hand on [her] leg and run it up [her] thigh." She would tell him to "knock it off" or "say please don't do that" or try to "laugh it off."

         The lieutenant "tried to not put [her]self in situations" where she could be subject to Captain Priester's harassment. In an attempt to protect herself, she said that she did not go into closed rooms with Captain Priester.

         During firefighting operations, Captain Priester would "pat her butt" or behave inappropriately by touching women. He would call her "toots, " to which she would reply, "[C]all me Lieutenant Toots[.]"

         Lieutenant Stevens said that Captain Priester would make inappropriate gestures to make others laugh. She said that people would laugh because they did not want to be "singled out."

         When asked whether she thought that Captain Priester was just joking, Lieutenant Stevens said that he might have been, but that he did not stop once he was told to stop. She added that he was in the position of power. She had begun as an EMT and had gotten promoted to the position of fire-suppression officer, and she believed that he did not want her "on the fire side."

         Lieutenant Stevens said that she did not immediately report Captain Priester's harassment because she did not "want to be labeled." She stated that it was difficult for women to report harassment in the Baltimore County Fire Department and that she reported Captain Priester's harassment only after she was questioned by Battalion Chief Peter Hill. On cross-examination, she explained that the department is "a paramilitary organization." "You go to your Captain first for everything."

         In a letter to Battalion Chief Hill, which was admitted into evidence at the hearing, Lieutenant Stevens wrote that she "struggled with the decision" to reveal any issues with Captain Priester, because it was difficult to be a woman, and a woman fire-suppression officer, in the Baltimore County Fire Department. Like EMT Duncan-Fulton's written statement, Lieutenant Stevens's letter corroborated her testimony and included additional details. She wrote that Captain Priester would breathe on her neck, kiss her neck, and whisper in her ear and that he would breathe heavily when she answered a telephone call that he had placed. Other employees would laugh when they witnessed his conduct.

         Lieutenant Stevens would "try to laugh it off too, " because she did not want to be (in her words) "shunned" and did not "want a 'label.'" In her testimony, she said, ...


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