ACLU and Maryland Trooper Issue Letters Condemning Retaliation by State Police

FOR IMMEDIATE RELEASE
Wednesday, February 17, 1999

BALTIMORE, MD — The American Civil Liberties Union and Maryland State Police Trooper Kevin Knussman today issued letters condemning the state’s retaliatory tactics against Knussman, who recently won a $375,000 jury award in the first-ever sex discrimination case under a federal medical leave act.

Knussman’s employers barred him from returning to work as a flight paramedic last Thursday and ordered him to undergo a psychiatric evaluation to determine whether he is fit for duty.

“The decision to subject Trooper Knussman to a psychiatric examination is retaliation of the most offensive, degrading sort imaginable,” ACLU cooperating attorney Robin Cockey wrote in a letter to presiding Judge Walter E. Black, Jr. of the US District Court in Maryland.

Knussman and his children also hand-delivered a personal letter to Governor Parris N. Glendening and Lt. Governor Kathleen Kennedy Townsend urging them to put a stop to the State’s unlawful actions and their attack upon the constitutionality of the medical leave act. “Even after the jury verdict, the State Police have persisted in harassing me for standing up for my rights,” Knussman wrote. “I believe continued hostilities – if successful – [would be] disastrous to the social goals reflected in the Family and Medical Leave Act.”

Knussman sent a copy of his letter to First Lady Hillary Rodham Clinton, who wrote about the family’s struggle in her 1995 book, It Takes A Village. A copy of the letter was also sent to President Clinton, who invited Knussman to join him on his weekly radio show in 1995 to celebrate the second anniversary of the medical leave act.

The ACLU’s previous release on Knussman v. State of Maryland can be found at: /news/1999/n020399a.html

February 11, 1999

SENT BY HAND DELIVERY
The Honorable Walter E. Black, Jr.
Senior Judge
United States District Court
District of Maryland
710 U.S. Court House
101 W. Lombard Street
Baltimore, MD 21201

Re: Knussman v. State of Maryland, et al.
Civil No. B-95-1255

Dear Judge Black:

Under cover of this letter I am submitting a draft of the proposed Decree amended to address developments that have occurred since Plaintiff submitted the original draft of that Decree.

At approximately 3:30 p.m. on the afternoon of February 10, I received a telephone call from Ms. Sconion, Defendants’ principal counsel. Ms. Sconion informed me that, because of testimony at trial and because of Trooper Knussman’s post-trial “statements to the media,” the Maryland State Police had decided Trooper Knussman’s fitness to return to duty was questionable, and would require Trooper Knussman to submit to a psychiatric examination as a precondition of returning to work.

After my telephone conversation with Ms. Sconion, I immediately telephoned Trooper Knussman, who in turn contacted his immediate superiors, Cpl. J. C. Lewis and First Sgt. Ron Lewis. Trooper Knussman informs me Cpl. Lewis said he had learned of the decision to require Trooper Knussman to submit to a psychiatric examination “Monday night,” (i.e. the night of February 8), and First Sgt. Lewis said it was his understanding the decision had “come down from the legal unit.”

Within an hour of my initial conversation with Ms. Sconion, I received a facsimile transmission confirming the substance of her remarks, a copy of which I enclose under cover of this letter. Today, at 12:30 p.m, I received a facsimile transmission from Mr. Hoffman, State Police co-counsel, “explicat[ing]” (though somewhat altering) the stance taken by Ms. Sconion; a copy of this communication is also enclosed.

Plaintiff’s counsel believe the decision to subject Trooper Knussman to a psychiatric examination is retaliation of the most offensive, degrading sort imaginable. There is absolutely nothing in Plaintiff’s trial testimony or that of his psychologist, Dr. Toler, to suggest to even the most fervid imagination that Trooper Knussman’s job performance is threatened in any way by the depression he suffered in the wake of his leave denial. There was nothing in the trial testimony that strayed beyond the four corners of Dr. Toler’s deposition testimony. Had defense counsel perceived any threat whatsoever to Trooper Knussman’s job performance, they presumably would have required a psychiatric examination following Dr. Toler’s deposition; they did not do so, leading to the inevitable conclusion their sudden interest in subjecting Trooper Knussman to this humiliation is prompted – if I may put it somewhat crudely – by post-verdict sticker shock.

In support of our contention the proposed psychiatric examination is retaliatory and the reasons adduced for it disingenuous, I would point out defense counsel are well aware Trooper Knussman’s most recent evaluation, in January, was exemplary. Defendants testified at length about the State’s chronic shortage of flight paramedics, but now profess their willingness to live without one for the sake of testing his fitness to perform his duty; however, Defendants are not sufficiently concerned about that fitness to reclaim Trooper Knussman’s badge, weapon or vehicle, all of which they have happily left in his possession.

I would also observe that defense counsel’s concern about Trooper Knussman’s “statements to the media” is oddly placed and more than a little disturbing. The Court will no doubt recall Trooper Knussman’s voluntary compliance with the Court’s request that we refrain from statements to the press during the pendency of the trial. Since the conclusion of the trial, Trooper Knussman’s public pronouncements concerning his continuing relationship with the Maryland State Police have been exclusively to the effect he is ready, willing, able and indeed eager to return to work. Certainly nothing he has said to the press raises any issue (or to a responsible employer could raise any issue) concerning his fitness to work, and the State’s threat to make his public statements the basis for psychoanalysis is sinister and reminiscent of the Soviet-era practice of confining dissidents to mental wards.

While I regret burdening the Court’s file with still more papers, my colleagues and I feel compelled to call this issue to the Court’s attention, and to request respectfully that the Court address it in the post-verdict decree. We appreciate your attention to this matter, and stand ready to participate in any briefing or argument (via teleconference or in person) on this issue the Court wishes to entertain. Very truly yours,

RRC/lw Robin R. Cockey

Encl.

cc: Deborah A. Jeon, Esquire, with encl.
Sara L. Mandelbaum, Esquire, with encl.
Betty S. Sconion, Assistant Attorney General, with encl.
Donald E. Hoffman, Assistant Attorney General, with encl.
H. Kevin Knussman, with encl.
Clerk of Court, with encl.

February 12, 1999

The Honorable Parris N. Glendening
Governor, State of Maryland
Office of the Governor
State House
Annapolis MD 21401

The Honorable Kathleen Kennedy Townsend
Lt. Governor, State of Maryland
Office of the Lt. Governor
State House
Annapolis MD 21401

Dear Governor Glendening and Lt. Governor Townsend:

As you are aware, I have been in litigation with the State of Maryland the last four years, seeking compensation for my loss of leave under the Federal Family and Medical Leave Act and the Maryland Nurturing Leave Act. I am writing you now concerning the lawsuit – which recently resulted in a $375,000 jury verdict in my favor – because Lt. Gov. Townsend was kind enough to offer me words of encouragement during the early stages of the lawsuit, and because the Glendening/Townsend administration has advanced a social platform for Maryland that I believe would not countenance prolonging this litigation.

During the trial of my case and its aftermath, the State’s lawyers indicated their intention not only of attacking my hard-won victory but also of attacking the constitutionality of the FMLA. I believe continued hostilities of that sort would prove unfair to my family and myself, inconsistent with the goals of your administration, and – if successful – disastrous to the important social goals reflected in the FMLA. I therefore would like to remind you of the background of my case and the issues at stake.

In the spring of 1994, my wife and I learned we were expecting our first child. We knew from the outset I would be a “hands-on” dad, and decided to seek extended leave from the Maryland State Police so I would have plenty of time to bond with our new baby.

Our decision for me to seek extended leave was reinforced when it became apparent my wife was suffering from severe toxemia, a serious and potentially life-threatening illness. My wife was placed on complete bed rest November 9, 1994, ordered into the hospital November 24 and not released from the hospital until December 11, two days after our child was born.

Since, during my eighteen years of state service, I had taken very little leave, I had accrued more than 1200 hours paid sick leave and approximately 400 hours paid annual leave. I therefore never considered there would be any difficulty in my obtaining extended leave in connection with the birth of my child. My sense of confidence was strengthened by the fact I had kept my immediate supervisor acquainted with the medical complications attending my wife’s pregnancy. I was therefore surprised and dismayed when I was told by MSP officials, in early November of 1994, there was “no way” I would receive any more than two weeks leave. However, a couple of weeks later, I received an MSP teletype advising employees of the newly enacted State Nurturing Leave Act, by which a state employee primarily responsible for the care or nurturing of a newborn child would receive up to 30 days paid leave, while a state employee secondarily responsible for care or nurturing would receive up to 10 days of paid leave. Since it was my wife’s and my decision I would be primarily responsible for the care and nurturing of our child, I was confident I would receive the 30 days paid leave available to a primary care giver without difficulty. Nonetheless, when I called a Maryland State Police “leave specialist” to determine how I should go about arranging for my 30 days leave as a primary care giver, I was again rebuffed: Jill Mullineaux, the official with whom I spoke, told me only women could be primary care givers of newborn infants. When I queried Ms. Mullineaux, she explained “Only women can be primary care givers for a newborn child because God ordained only women can breast feed.”

In keeping with Ms. Mullineaux’s pronouncement, I was given only 10 days paid sick leave as a secondary care giver, when my child was born. After bringing my wife and newborn baby, Paige, home, it quickly became apparent I was in fact the primary care giver, not only for Paige but to a large extent for my wife as well. Faced with this reality, I again telephoned Ms. Mullineaux in an attempt to extend my leave to the full 30 days allowed a primary care giver. When I explained to Ms. Mullineaux how ill my wife was, she told me, “Unless your wife is dead or in a coma, you can’t be a primary care giver, because God ordained only women can give birth.” Accordingly, I was again denied primary care giver leave, a decision affirmed by high-ranking MSP officials. I was then ordered back to work, and told I would be “AWOL” if I did not promptly comply.

In the wake of these decisions, I filed a grievance – my first in eighteen years of state service. My grievance was resolved by Capt. (now Lieut. Col.) David Czorapinski, an official who had participated in the decision denying my leave request. Capt. Czorapinski ruled my leave request had properly been denied, since he felt I failed to prove my wife was “incapacitated.” Capt.. Czorapinski’s decision was upheld by Col. David Mitchell, Superintendent of Maryland State Police, again for the stated reason I had failed to demonstrate my wife’s incapacity.

At the same time I filed a grievance, I also filed a “Fair Practices Complaint” with the MSP Fair Practices Officer, Lieut. Namon Brown. Though Lieut. Brown seemed quite attentive, I received no decision or ruling whatsoever from his office, and I concluded my Fair Practices Complaint had simply been ignored.

At no point during any of my discussions with MSP officials concerning leave issues, did any MSP official advise me I could use accrued paid leave to make up the 12 weeks leave available under the federal FMLA. I informed the MSP officials involved that I was under the impression FMLA was necessarily unpaid, a false impression which they encouraged. Only much later, after contacting legal counsel, did I learn the truth, that my accrued paid leave benefits could have been applied to make up the full 12 weeks of FMLA leave to which I was entitled.

Having been completely stymied by MSP officials in my attempts to take time off to be with my wife and child, I reluctantly filed suit in the spring of 1995. As you know, my suit sought compensation for the leave denial and the emotional distress caused by my having been rebuffed by my longtime employer, in flagrant violation of the law, and by having been deprived of time with my newborn baby and sick wife during a period in which they really needed me.

Long after suit was filed, my attorneys filed a Request for Production of Documents. In response, the Maryland State Police produced literally hundreds of pages of paper, in the middle of which was a Memorandum by the Maryland State Police Fair Practices Officer, Lieut. Brown. As you can see from a copy of the enclosed memo, Lieut. Brown had concluded the Maryland State Police had improperly handled my leave request. Had a copy of Lieut. Brown’s decision been shared with me in an timely fashion, I believe all parties would have been forced to confront the issues head on and resolve them, and we could perhaps have avoided wasteful litigation.

Throughout the last four years of litigation, the Maryland State Police has refused to entertain any meaningful settlement. Indeed, Maryland State Police attorneys insisted on filing two preliminary motions – a Motion to Dismiss and later a Motion for Summary Judgment – which were unsuccessful but had the inevitable result of significantly delaying the litigation and running up thousands of dollars of attorneys’ fees. Throughout, the Maryland State Police’s attitude can best be summed up by the remarks of one of the Defendants, former First Sgt. Ronnie Creel, who confirmed in court his characterization of my leave request (to be with my sick wife and baby daughter!) as a “bunch of crap.” Even after the jury verdict, the State Police has persisted in harassing me for standing up for my rights, as most recently evidenced by their informing me I would not be permitted to return to work until I had undergone a psychiatric examination and demonstrated my “fitness” to work. Since there is absolutely nothing in the trial testimony to suggest my ability to function on the job was impaired, (indeed, my most recent evaluation, in January, was exemplary), I can only conclude I am being punished for the jury verdict.

I have now served the State of Maryland 22-1/2 years as a Maryland State Police trooper, most of that time as flight paramedic. As I look forward to serving the State for another 2-1/2 years before reaching retirement age, I fervently hope the State Police will put this entire matter behind them. In any event, I cannot believe that the posture previously taken by the State Police in this case reflects the policies of your administration, and I would ask that you direct the State’s lawyers to desist from further motions, appeals, and, generally, legal maneuvering designed to prolong the litigation. I am taking the liberty of providing a copy of this letter to President Clinton, who during his State of the Union address issued a warning to employers to obey the Family and Medical Leave Act voluntarily to avoid subjecting the country and themselves to needless litigation. President Clinton’s vision in signing the Family and Medical Leave Act into law has been amply born out by benefits to families across the country, and I cannot but think you share his dedication to genuine family values. I understand the Federal Justice Department is favorably considering filing an amicus curiae brief in my case to defend the constitutionality of the FMLA against attacks by the State’s lawyers, and I am grateful the President and his administration are standing behind families benefited by the FMLA.

I also am providing a courtesy copy of this letter to the First Lady. Mrs. Clinton was good enough to cite my lawsuit in her book, “It Takes A Village,” as an example of the courage needed to bring about enforcement of the FMLA. Her words of encouragement brought my family and myself much emotional sustenance at a time when we really needed it.

Thank you for your consideration.

Respectfully,

H. Kevin Knussman

cc: The Honorable William Jefferson Clinton, President, United States of America
Mrs. Hilary Rodham Clinton, First Lady