Ross v. Mayor of Baltimore

SALMON, Judge. Appellant, Margaret Ross, up until June 28, 1996, was a “City Planner Supervisor” in the Baltimore City Department of Planning. She had worked for the City for fourteen years as of June 28, 1996, when she lost her job through no fault of her own. Ms. Ross had a right, guaranteed by the City’s Charter and the rules of the Civil Service Commission, to have her name placed on a re-employment list and to be rehired (in order of seniority) as a City Planner Supervisor if, within one year of the date of her discharge, the City filled a vacancy for the position of City Planner Supervisor.

Ms. Ross’s name was placed on the re-employment list, and as far as is shown by the record, she had the most seniority of any former City Planner Supervisor on that list. Ms. Ross was not, however, re-hired by the City within one year of her discharge, and her name was thereafter taken off the re-employment list. The central question to be resolved in this case is whether, within one year from the date Ms. Ross lost her job, the City filled a vacancy for the position of City Planner Supervisor. If the City did fill a vacancy, it would appear, at least from the ³⁷³ material presented to the motion’s court, that Ms. Ross was entitled to be hired lor that vacancy.

The City maintains that it did not fill such a vacancy and, accordingly, maintains that it had no obligation to re-hire Ms. Ross. I. BACKGROUND FACTS 1 Article VII, section 100(b), of the Baltimore City Charter provides: Each person discharged for the purpose of reducing the force and without fault shall receive a certificate so stating and all persons so discharged shall be placed on the eligible list in the order of the length of their service in their classifications at the time of being laid off.... Persons so discharged shall have preference in the order of their seniority over others on the eligible list.... The rules of the Civil Service Commission for the City spell out the rights of employees who have been discharged “through no fault of their own.” Civil Service Rule 52C reads: Whenever it becomes necessary to reduce the work force in any organizational unit because of lack of work or lack of funds, the appointing officer shall notify the Department [of Personnel] of the names and classifications of the affected employees for the pui-pose of entering their names on appx-opriate re[-]employment lists as provided in Rule 39, and shall furnish each person so laid off or x-emoved with a certificate to that effect, as required by Section 102 of the City Chax-ter.

Civil Service Rule 29A states: For initial appointments, the Personnel Director shall first certify to the appointing officer from the appropriate reemployment list the names of persons, equal in number to the positions to be filled, who have been laid off pursuant to ³⁷⁴ the provisions of Rule 52. All names shall be selected or removed from a re[-] employment list for a class before any selections may be made from an employment list for the same class. Certifications for promotions to a class for vacancies in an organizational unit in which a layoff occurred may not be made while the re-employment list for that class contains the names of eligibles from that organizational unit. Certifications for promotions to the class for vacancies in other organizational units may be made only if no new or additional names were placed on the re-employment list within the 90 days prior to the date of request for certification.

Lastly, Civil Service Rule 39 reads, in pertinent part: B. The names of persons laid off in accordance with Rule 52 shall be placed on the re-employment list for the appropriate class in the order of the length of their service in their classifications at the time of being laid off and in other classifications in the Classified Civil Service in which they may have served previously. * * * C. Persons laid off under Rule 52 shall have absolute preference in re-employment, in the order of their standing on the re-employment list, when certified for the class in accordance with the provisions of Rule 29 and shall not be required to serve a probationary period upon re-employment in their former organizational unit. Because of the provisions quoted above, Ms. Ross’s name was placed on a re-employment list for the position of “City Planner Supervisor” on June 28,1996. In the one-year period that passed while Ms. Ross’s name was on the re-employment list, four positions of City Planner Supervisor became vacant. One of those positions indisputably remained vacant for one year and therefore does not concern us.

Whether any of the other three City Planner Supervisor positions remained vacant was disputed by the parties, but for our purposes it is neces ³⁷⁵ sary to discuss only what occurred in regard to two of the three vacancies. 2 On July 30, 1996, Raymond Bird retired from the City’s Department of Planning. The position vacated by Bird remained empty until November 1996 when Gloria Griffin, an employee formerly under Mr. Bird’s supervision, was asked to serve as Acting City Planner Supervisor. She was also asked to perform all the functions previously performed by Mr. Bird. Before the City asked Ms. Griffin to perform the duties of a City Planner Supervisor, the City did not first try to hire a replacement for Mr. Bird from the re-employment list.

Instead, it relied on a provision of the City’s Administrative Policy Manual referred to as the “in lieu of provision,” which reads: An agency may fill a vacant position with an employee whose job class is not the same as the class of the vacant position if such action will allow the individual to gain the necessary experience to qualify for the class. To be eligible, the employee’s class and the class of the vacant position must be in the same class series. (For example, a Senior Clerk position may be filled with a Clerk “in lieu” of a Senior Clerk.) A little over two months after Ms. Ross’s name was removed from the re-employment list, on September 8, 1997, Ms. Griffin was promoted to the position of City Planner Supervisor. The promotion of Laurie Feinberg, an employee of the Department of Planning, followed a path almost identical to the one traversed by Ms. Griffin.

Ms. Feinberg’s supervisor, Donald Duncan, retired as City Planner Supervisor on July 30, ³⁷⁶ 1996. About three months later, again in November of 1996, Ms. Feinberg was asked to perform the functions Mr. Duncan had previously performed. She performed the duties of a City Planner Supervisor, albeit without benefit of the formal title or pay, until September 8, 1997, when she was formally promoted to the position of City Planner Supervisor. On August 13, 1998, Ms. Ross filed suit in the Circuit Court for Baltimore City, naming her former employer, the Mayor and City Council of Baltimore, as a defendant.

Ms. Ross alleged that under the City’s Charter, as well as under applicable civil service rules, she had a right to be re-hired as a City Planner Supervisor, but that the City, rather than rehiring her, had transferred or reassigned existing lower ranking employees into the vacant City Planner Supervisor position. Ms. Ross further alleged that the City, by its failure to re-hire her, denied her rights guaranteed under Articles 19 and 24 of the Maryland Declaration of Rights. She prayed for the following relief: a. For the declaration of her rights and reinstatement in her position; b.

For front and back pay; c. For interest and the costs of this action; d. For such other and further relief as this court deems appropriate. The City filed a motion for summary judgment that was supported by a memoranda that underscored the point that whether the City’s motion had merit depended on the truth of two (alleged) facts: (1) between June 28, 1996 (when Ms. Ross was placed on the re-employment list) and June 28, 1997, “there were no City Planner Supervisor Vacancies”; (2) the persons who ultimately were hired as City Planner Supervisors were not hired for the supervisor position until after June 28, 1997, when Ms. Ross was no longer on the list.

The City concluded its trial memoranda with these words: The Department of Personnel has sole discretion in the maintenance of a re-employment list and, in this case, dutifully performed its responsibilities to the [pjlaintiff. ³⁷⁷ That no jobs became available during the one year period is not actionable. Nor does the [pjlaintiff have any remedy because the City promoted two City employees to City Planner Supervisor after June 30, 1997. The [pjlaintiff has failed to present a prima facie case alleging any improper purpose, or establish any evidence of a constitutional denial or City Charter proscription, which would have impeded her re-employment. Ms. Ross filed an opposition to the City’s motion, as well as a cross motion for summary judgment.

Her opposition and cross motion were supported by her own affidavit, as well as by excerpts from the depositions of Ms. Griffin, Ms. -Feinberg, and others. The central point advanced by Ms. Ross in her opposition memorandum was that during the year she was on the re-employment list three positions of City Planner Supervisor became vacant and were later filled by existing City employees “in lieu of promotion.” She contended that filling the vacancies in this matter violated the clear and unambiguous provisions of the City’s Charter and the rule of the Civil Service Commission. A healing on the pending motions was held in the Circuit Court for Baltimore City on December 3, 1999. At the hearing, counsel for the City made a brief oral argument in which he asserted that the “case boils down to the fact” that while Ms. Ross was on the re-employment list the vacant position of City Planner Supervisor “was not filled by anyone.” II.

THE MOTIONS JUDGE’S RULING In making her ruling, the motions judge said that two facts were undisputed, viz: (1) that Ms. Ross was on the reemployment list from June 28, 1996, to June 28, 1997, and (2) that, if the City hired a City Planner Supervisor during that period, Ms. Ross would have been at the top of the list. During argument, the trial court made clear that she accepted the validity of the City’s argument that the position of City Planner Supervisor was not filled while Ms. Ross was on the re-employment list. She orally delivered her decision and the rationale for it: ³⁷⁸ What happened in each one of those instances was that the City, instead, placed someone in the position in lieu of, following, I guess, the administrative manual policy that is set out in 231-1, which states that, “An agency may fill a vacant position with an employee whose job class is not the same as the class of the vacant position if such action will allow the individual to gain the necessary experience to qualify for the class. To be eligible, the employee’s class and the class of the vacant position must be in the same class series.” Additionally, that policy states what is prohibited.

And explicitly it states that, “It is prohibited to fill a vacant position with an employee whose job class is in the same class series as the vacant position and has a salary range which is higher than the budgeted position.” So what that meant is that, if the City was going to be filling the positions in lieu of, the plaintiff did not qualify to fill the positions in lieu of. And the plaintiff has stated, and I think correctly so, that that’s not really what her goal was. Instead, her goal was to be hired as a City Planner Supervisor, which is understandable. However, essentially what that means is that the plaintiff is saying that the City was required to fill the position with the City Planner Supervisors and was prohibited, as a matter of law, from filling them in lieu of.

And that’s not my understanding of what the Charter and the Civil