Petition for Writ of Certiorari — Owens v. Baltimore & Ohio Railroad

bas 5 = 20 1 6 | Supreme Court, U.S.

FILED

IN THE MAY 31 1966

JOSEPH F. SPANIOL, JR.

SUPREME COURT OF THE UNITE STATESLERK

OCTOBER TERM, 19897 = ~~

WAYNE T. OWENS, Petitioner

Ve

THE BALTIMORE & OHIO R.R. CO., Respondent

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

PETITION FOR A WRIT OF CERTIORARI

WAYNE T. OWENS

1751 Covington Street

Baltimore, Maryland 21230

Telephone: (301) 962-8581

INPROPER PERSON

QUESTIONS PRESENTED

Whether the charge of “employment

Miscrimination because of a physical

londition, "filed by the petitioner

gainst his employer, the Baltimore &

Bhio R.R. Co. was timely filed.

@. Whether the act of denying the

etitioner, his return to active

mployment, was a single and complete

ct (a one time occurence) or was it

continuing act, that has occurred

d continues .to occur each day the

bmpany continues to deny the petitioner

is return to employment.

INDEX

PAGE

Questions Presented I

Opinion Below +

Jurisdiction +

Statutory Provisions Involved >

Statement of the Case 5

Reasons for Granting of Writ

1. The Decision Below Conflicts 10

with Supreme Court Language

and Findings, that there are

Illegal Acts that are Deemed

"Continuing"

2. The Decision Below Affords 11

an Umbrella of Protection,

or Loophole, for Illegal and

Discriminatory Acts, and

Circumvents the Spirit and

Intent of the Law

3. It Would Be In the Public 12

Interest for This Writ to

be Granted

Conclusion 13

Appendix

(A) Opinion of Baltimore Community APP-1

Relations Commission Public

Hearing

(B) Opinion of Master Tockman of APP-6

Baltimore Circuit Court

(C) Opinion of Judge Marshall Levin APP=1¢

of Baltimore Circuit Court

Oe

INDEX, Continued

PAGE

Appendix, Continued

(D) Opinion of Court of Appeals APP-20

of Maryland

(E) Medical Examination, Canton APP-21

R.R. Co.

CITATIONS

Mobley v. Acme Foods, 4/73 Fed. C-]

Supp 851, Page 857, Par. B (6&7),

Continuing Violation

Now comes the petitioner, Wayne T. Owens,

te plea The Honorable Supreme Court of the

United States of America, to issue a Writ

of Certiorari to review the opinion and judge-

ment of The Court of Appeals of Maryland,

petition docket no. 562, September Term, 1985.

Entered on March 10, 1986.

OPINION BELOW

The opinion of The Court of Appeals of

Maryland, and the District Court of Baltimore,

Maryland, neither of which were published,

appear in the Appendix hereto.

JURISDICTION

The judgement of the Maryland Court of

Appeals was entered on March 10, 1986, and

this petition of Certiorari is filed within —

90 days of that date.

STATUTORY PROVISIONS INVOLVED

Article 4, of The Baltimore City Charter,

clearly and undisputibly declares that it is

illegal for a company doing business in the

\

\

City of Baltimore, to discriminatein employment

practices because of a physical condition of a

employee, or applicant for employment.

STATEMENT OF THE CASE

Owens, and employee of the Baltimore &

Ohio R.R. Co., suffered serious injuries in a

off duty traffic accident.

Owens was hospitalized and underwent

extensive and numerous surgeries to repair

the sustained injuries. In accordance with

the Labor Management Agreement in effect at

the B & O R.R. Co., Owens was placed on sick

leave status with his employer and would remain

in that status until such time that his

recuperation allowed him to returgp to active

employment status.

When it was decided by the Orthapedic

Specialists that performed the surgery and

follow-up treatment of Owens, that he was

physically able to return to the physical

duties of his job, he was released to return

to work.

Upon presenting. himself along with the

Surgeons Release, to the B & O R.R. Co.,

the company through it's medical department

would not allow Owens to return to work at

that time. But there was the possibility that

at a later date he would be re-examined, re-

evaluated and another decision would be made

at that time , to either allow Owens to return

to work, or continue to deny him return to

active employment.

This action in no way severed or terminate:

the employmentof Owens, he continued in the

employment of the railroad, maintaining his

position on the yearly postings of the company

seniority roster, and would resume as an active

employee when the company's medical department

was finally satisfied and in agreement with

Owens' doctor that he was able to return

to work. Subsequent visits to the company's

medical department failed to alter their

opinion of Owens’ ability to funciton as a

machinist at Riverside Shops, the Diesel Repair

Facilities of the B & O R.R. Co. in Baltimore,

Maryland.

In 1978, Owens had come aware of an employ-

ment opening, as a machinist with the Canton

R.R. Co. of Baltimore, MD. Owens applied for

the job, noting his prior injuries on the

employment application, and was examined by

the medical department for the Canton R.R. Co.

was declared physically fit and was hired as a

machinist at the Diesel Repair Facility of the

Canton R.R. CO. Owens accepted the job and

became an employee of the Canton R.R.

Ownes felt that being able to pass a

physical with this railroad for the job of

machinist, would most surely convince

the B & O R.R. Co. medical department that

they had misjudged him. So he again presented

himself to the B & O R.R. Co. and expressed

his desire to return tc his job with them.

He was again examined by the B & O R.R. Co

medical department, and again turned down. It

was at this time Owens felt that the B & O

R.R. Co. had no intention of ever admitting he

was physically able to return to work. Since

Owens felt that by passing a physical on

anotner railroad for identical position

(machinist) he had proven his physical cap-

abilities, and by the B &0) R.R. Co. stiil

denying retura to work, that now, they were

being discriminatory, and he filed charges of

discrimination against the company, through.

the Baltimore Community Relations Comminssion,

since the Baltimore City Charter, ART-4, makes

such an act illegal in Baltimore.

After extensive investigation, findings

and repeated efforts to resolve the matter with

the B & O R.R. Co., the Baltimore Community

Relations Commission, finally brought the matte

8

to a Tribunal Public Hearing.

The decision of the public Hearing, was

that in fact the B & O R.R. Co. “was guilty of

discrimaiton,™ and ordered to return Owens to

active employment.

The B & O R.R. CO. ignored the order of

Baltimore City Community Relations Commission.

The Commission through its legal arm, The City

Solicitors office, sought compliance, the

railroad resisted, and the matter was heard

before Master Shirley Tochman of the Baltimore

City Court, the Master upheld the order of the

Community Relations Commision. The case then

went befo.e Judge Marshall A. Levin of Baltimore

Circuit Court, who ruled that the charge was

time barred because it was not filed within

180 days, he ruled in this manner even though the

issue of “timely filing” had been addressed

by the Community Relaations Commission Public

Hearing, and Master Tockman, in both instances

it was ruled that Owens' Charges of Discrimination

were timely filed and for that matter in fact

not time-barred.

The petition seeking enforcement of the order was

filed on November 30, 1983. Given the deliberatel|

vague and flexible standard chosen by the City

Council, it is not appropriate to read into the |

ordinance a definite time period based on analogie

from other administrative agencies. The two-year

delay is unusual and may be considered at trial |

according to normal estoppel principles. Since

prejudice to the employer base on the delay is a |

factual matter, this objection cannot be resolved |

on the pleadings.

The final objection noted by defedant is that

Owens is not within the class of person afforded

protection by Article IV of the City Code. Secti

10 of Article IV prohibits employment discriminat

based on "race, color, religion, national origin,

ancestry, sex, age, or physical or mental capacit)

Physical disability is defined in seciotn 9(13) o!

Article IV as “any physical condition, infirmity,

malformation, or disfigurement which is caused

by bodily injury, birth defect, trama, or ill-

"

nesS .« « » The fact that Owens in his complaint

states that he is physically able to work as a

mechanic and has been employed by other companies -

in that capacity does not negate his charge that

defendant refused to reinstate him based on the

employer's perception that he was not physically

disqualified.

Counsel during argument on the motion referred

to the testimony and exhibits presented to the

Community Relations Commission. Plantiff's con-

tention that the employer rejected Owens because he

might be more susceptible to injury due to

residual ankle problems sounds much like the

complaint of discrimination considered in B& O

Railroad v. Bowen, Csa, No. 1595, Sept. Term 1983,

Daily Record, Nov. 13, 1984. The court affirmed a

back pay award by the State Commission on Human

Relations to a rejected job applicant. The company

had reject Bowen based on its doctor's opinion

that the applicant would suffer a back injury

on the job because he had a bullet lodged in one

vertebrae. Teh applicant had received a gunshot

while serving in the Army. At issue was the burden

of proof. The Court of Special Appeals held that

once a prima facie case is establish ed the

employer has the burden to show a "resonable

probability" of future hazard to the employee's

APP-13

aii.

health or safety because of the handicap. The

existence of a handicap was assumed based on the |

reason given by the employer for rejection of the

applicant. Whether a physical condition as

defined in Article IV of the City Code constitutes

funcitonal handicap is a matter of proof. Owens

was perceived by the employer as being nandicappes

because of a physical condition. Therefore, Owen:

falls within the protected class under the city

ordinance.

Rule 2-541 (h) allows ten (10) days from the

date of filing of this Report and Recommendation

for exceptions.

Date of filing General Master

and mailing

APP-14

IN THE

BALTIMORE COMMUNITY

RELATIONS COMMISSION

CIRCUIT COURT

VS.

BALTIMORE AND: OHIO

RAILROAD COMPANY BALTIMORE CITY

)

)

5

)

) FOR

)

CASE: 83334006/E13758

)

ORDER

No exceptions having been filed and the

Report and Recommendaiton of the General Master

having been reviewed and approved, theis Court

adopts the Report and Recommendaiotn as its Opinion.

It is this day of , 1984 by the

Circuit Court for Baltimore City.

ORDERED that the motion to dismiss is granted

unless the Mayor & City Council of Baltimore is

substituted as plaintiff in place of the Baltimore

Community Relations Commission;

ORDERED that the preliminary objection to

subject matter jurisdiction is denied.

Judge

APP-15

APPENDIX C

fa ACAI har id cr

BCRC IN THE |

AND CIRCUIT COURT |

WAYNE OWENS FOR |

PETITIONERS BALTIMORE CITY

V. 83334006/E13758 4

THE B & O R.R. CO.

RESPONDENT

Nee Ne a of Re” OY SY a’

{EMORANDLUM OPINION AND ORDER

-

The petition of the BCRC should be dismissed —

because it must be brought in the name of the

"Mayor and City Council of Baltimore” and it has

not been. It has been brought in the name of the

"RCRC Ai

However, counsel informed this Court that

the petition shall be amended to be brought in

the proper name, i.e., "Mayor and City Council

of Baltimore City." Hence the petition will not

be dismissed for this reason.

APP=-16

2.

The petition must be dismissed because it

was not brought "within 180 days of (such) alleged

unlawful proceeding." Art. IV, Sec. 16 (5) of

the Baltimore City Code. It may have been actually

brought within 18 days of B & O determination in

1978 that Owens was unfit to return to work, if

that determination is consideredita be a dis-

Criminatory act, i.e., an "unlawful practice,"

But it was not timely brought. B & O determined

that Owens was not able to work in 1962 when it

placed him on open-ended disability leave of

absence. Again in 1966, B & O determined that

Owens could not return to work (t=cause he still

had “hardware" in his leg). In 1971, the hardware

was removed but Owens made no move to seek

reinstatement until 1978.

It is true that Owens did not have a right

to complain about disability discrimination until

1976, the year Article IV was amended. But it

is equally true that the acts of the B & O in

refusing to rehire Owens were not unlawful prior

to 1976. When the ability to complain about

an unlawful practice arose in 1976, Owens could

APP-17

then have re-applied. He then had no hardware

in his leg. But he waited until 1978 to complain,

His complaint dealt with a situation that had

existed since 1962.

The argument that B & O's failure to rehire ‘

(or recall) is not tenable. In layoff cases, the}

Courts have rejected this theory. Law v. United, |

519 F. 2d 171 (10th Circuit 1975) (age

discrimination); United v. Evans, 431 U.S. 332

(1977) (gender discrimination); Mobley v. Acme,

|

473 F. Supp. 851 (D. MD 1977).

Assuming that the refusal of B & O to recall!

"|

Owens in 1962 and 1966 were “unlawful practices

Owens failed to seek reinstatement until 1978. I

the 18't day clock runs from 1978 why may it not

until1988 or even 1998? If he felt that B & O wa

{

quilty of an unlawful practice when it was first |

*

i‘? 3

possible to complain about such unlawful practice

in 1976 he should have sought recalithen. He knell

or should have known that the refusal of B & O

to recall him was an unlawful practive. If he

wanted to put B & O to the test, he should have

App-18

applied for recall. It may well have been that

B & O would have recalled him. After all,

the hardware had been removed. If not, then

he had 18Q days to assert the unlawful practice,

Since he did not do so in 180 days he is to late,

Marshall A. Levin

Judge

This document has been altered by

eliminating Judge's signature

APPENDIX D

WAYNE T. OWENS

THE BALTIMORE AND

OHIO RAILROAD COMPANY

March 10,1 986

a a a he he

)

)

)

ORDER

Upon consideration of the petition for a

writ of certiorari to the Court of Special Appeal

in the above entitle case,

ORDERED, by the court of Appeals of Maryland

that the petition be, and it is hereby, denied |

as there has been no showing that review by

-erttorari is desireable: and in the public interef

COURT OF APPEALS

OF MARYLAND

Petition Docket No.

september Term,

(No. 329, Septmeber Term!

1985 Court of Special

Appeals)

/S/ Robert C. Murphy

Chief Judge

APP=20

APPENDIX E

CENTRAL MEDICAL CENTER,

Yorthpoint Boulevard

16 S. Eutaw Street NI3SO McCormick Road

ee Seen Baltimore, Maryland 21201 Hunt Valley, Maryland 21031

pate & Y- JF

EMPLOYMENT & RETURN TO WORK APPROVAL SLIPS

above persan was examined in this ~ today and(is}iamact approved tor

(+ Employment ) RetwemteWesk

Pending results of Ce, Pa

Pending results of A a X-ray

an results of EKG

ith the following restrictions

rae Aaah? a A. lg thay LLL A

7 DR'S. sonatune £ Let a VG

CITATIONS

Mobley v. Acme Foods, 473 Fed. Supp 851, Page 857

par. B (6 & 7), Continuing Violation

Seketetetesehe eke KR

(b)

Continuing Violation

(6 & 7) Plaintiff next contends that his claim of

a discriminatory layoff constitutes a continuing

violation of Title VII and thus is not barred by

limitiations. This Court is satisfied that this

contention is without merit.

It is well settled that a typical layoff is

not a continuing violation but is a completed act}

at the time it occurs. See e.g., Griffin v.

Pacific Maritime Ass'n, 478 F.2d 1118, 1120 (9th

Cir. 1973), cert. denied, 414 U.S. 359, 49 S. Ct.

69, 38 L.Ed.2d 1'9 (1973). As was recently made

clear in United Air Lines, Ince. v. Evans, 431

U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977):

-.-the emphasis should not be placed

on mere continuity (of ae from

the act of discrimination); the

critical question is whether any

present violation exists. (Emphasis

in original) 431 U.S. at 558, 97 S.

Ct. at 1889,

Most often, continuing violation are found

where the plaintiff alleges a failure to hire or

promote followed by the hiring and promotion of

others. See Moore v. Sunbeam Corp., 459 P. 2d

811, 828 (7th Cir. 1972); Law v. United Air Lines,

Inc. 519 F.2d 170 (10th Cir. 1975). Another typical

continuing violation is the payment of a discrim-

inatory wage. See, e.g., Corbin v. Pan American

World Airways, Inc., 432 F.Supp.939 (N.D.Cal.1977).

What these violations have in common is thatthey

repeat Title VII. See Moore v. Sunbeam Corp., 459

F.2d 811, 828 (7th Cir. 1972); Law v. United Air

Lines, Inc., 519 F.2d 170 (10th Cir. 1975). CE.

United Air Lines v. Evans, 431, U.S. 953, 558

97 S. CT. 1885, 52 L. ED. 2d 571 (1977).

C-2

Accordingly, for the reasons state, this Court

will deny plaintiff's motion for reconsiderati

of the Court's Order of June 1, 1979, insofar

such Order dismissed plaintiff's individual

claim of discrimination with respect to hiring

The finding of the Court of Appeals of

Maryland affirmed the judgement of the District

Court of Baltimore City.

REASONS FOR GRANTING WRIT

1. THE DECISION BELOW CONFLICTS

W LA

AND FINDINGS, THAT THERE ARE

ILLEGAL ACTS THAT ARE CONTINUING

IN NATURE,

The Supreme Court in Evans v. U.S. Airline

and Mobley v. Acme Foods, said that lay-off

situations are single and complete acts and

therefore are bound by the 180 day clock, but

went on to say that there are cases of illegal

action that are deemed to be continuing in

nature and cited such as; denying employment

while hiring and promoting others, and since th

type of act is continuing in nature, the 180

days statues are not applicable. See Moore v.

Sunbeam Corp. 459 F2d811 and Law v. United Air

Lines 529 F2d1/70.

Since Owens was not laid off by the B & O

R.R. Co. the single and complete act mentioned

above does not apply in this case, but rather,

since Owens was continually disqualified

1(y

on numerous visits to the B & O R.R.Co. medical

department, and during this time the company

hired others to perform the work of Owens, and

promoted others, that the act is continuing,

and therefore any time statues for filing charges

would be null and void.

2. THE DECISION BELOW AFFORDS AN |

UMBRELLA OF PROTECTTON, OR

LOOPHOLE, FOR ILLEGAL AND

DISCRIMINATORY ACTS, AND

CIRCUMVENTS THE SPIRIT AND

INTENT OF THE LAW.

It was certainly not the intent of the

Baltimore City Council and Mayor, when they

enacted ART-4 of the City Charter to on one hand

declare it illegal to discriminate in physical

rejection of employees, and at the same stroke

of the pen mean for someone like the B & O R.R.

Co. to violate the law and evade compliance

through the 180 day statute. The issues are

clear in the case of Owens v. B & O R.R. Co., the

railroad is continually and still to this very

day continues on a daily basis to discriminate,

by saying “we are not allowing Owens to return

to work because of his physical condition.’

11

Their illegal act must therefore be of a

continuous nature, and not that of a onetime

single and complete act, so they cannot invoke

any time-barring action.

3. IT WOULD BE IN THE PUBLIC

INTEREST FOR THIS WRIT TO

BE GRANTED,

If a segment of our population, the physical]

handicapped, cannot pursue active gainful and

self-supporting employment, then it becomes the

financial burden of the bannewane to support the

handicapped person and dependent family (if he

has any) through tax-supported social programs.

So it would be in the public interest if people

with injuries are allowed an equal opportunity

to employment, it lets the individual lead a

more useful and productive life, and spares

society as a whole from being taxed. It is

the moral if not legal responsibility of employers

to hire handicapped people for their abilities,

not their disabilities.

12

CONCLUSION

The Baltimore Circuit Court erred when it

ruled Owens' charge of discrimination was time-

barred, and the Maryland Court of Appeals also

was wrong when it affirmed the decision. The

only way these decisons are fair, is if Owens

was discriminatory laid-off, for then it would

be a single and complete act, and the charge

would then be time-barred. But Owens is not held

out of his job because of lay-off, but rather

a continuing physical disqualification.

Judge Marshall A. Levin relied on case

histories in his decison, (Law v. United 519

F2d171 10th circuit 1975) and (United v. Evans

431 U.S. 553 1977) and (Mobley v. Acme 473 F.

Supp. 851 D MD 1977). Quoting Judge Levin,

"In lay off situations" as he referred to all of

the above. He was in error when he applied these

cases to Owens as Owens was not laid off. Rather

he was held out of service for physical injuries

he sustained in a traffic accident.

13

Clearly continuing discrimination and

therefore the discrimination charges by Owens

cannot be time-barred.

Respectfully Submitted,

Wayne T. Owens

1751 Covington Street

Baltimore, Maryland 21230

INPROPER PERSON

14

APPENDIX A

BEFORE THE BALTIMORE

COMMUNITY RELATIONS COMMISSION

BALTIMORE COMMUNITY

RELATIONS COMMISSION,

In the Matter of:

Case No.

E78C103(PD)-29

Wayne Owens,

Complainant,

Ve

THE BALTIMORE AND

OHIO RAILROAD COMPANY,

Ne ee a a a

Respondent.

FINDINGS OF THE HEARING TRIBUNAL

In the matter of Wayne Owens, Complainant, vs.

The Baltimore and Ohio Railroad Company, Respondent,

the panel of commissioners (Dorsey, Chairperson,

Parrish and Wright) find in support of the

Complainant's claim of discrimination because

of his physical disability in the terms and

conditions of his employ. The panel finds

that this discrimination has been ‘continuous

since January 26, 1978, in that:

APP-1

1. Reinstate Mr. Owens inhis job as Machinist.

2. Place him on the Journeyman roster at the

first level above the first person to be

moved from the apprentice roster to the

Journeyman roster after January 30, 1978,

and to return to him all benefits and

privileges which may have accured from the

date of that individual's move up on the

roster (in other words the person whose place

Mr. Owens should have had at the head of

the apprentice roster) including but not

limited to retirement, sick leave and vacatic

APP=4

Mr. Elias Dorsey

Chairperson

Mc. William Parrish

Commissioner

Mrs. Nancy Wright

Commissioner

APP=5

APPENDIX B

BALTIMORE COMMUNITY IN THE

RELATIONS COMMISSION

VS. CIRCUIT COURT

BALTIMORE AND OHIO

RAILROAD COMPANY FOR

BALTIMORE CITY

CASE: 83334006/E13758 |

wD ed a a a a a ad

REPORT AND RECOMMENDATION

Subject of Hearing: Motion Raising Preliminary

Objection (Paper No. 4)

Date of hearing: March 7, 1984

Recommendation: Grant motion as to lack of

capacity unless Petition is amended to

substitute Mayor & City Council as plaintif §

Deny as to subject matter jurisdiction.

APP-6

REPORT

The Baltimore Community Relations Commission

is an agency of the City of Baltimore under Article

IV of the Baltimore City Code. It seeks to

enforce an order passed by its hearing tribunal

that directs the B & O Railroad Company to rein-

state an employee. Seciton 20 (Enforcement) of

Article IV provides:

(a) Certification of Complaint. In the

event any respondent refuses to comply with

an order of the Commssion (as to any matter other

than those covered by Section 161(11) of this

subtitle), or in the event, at any time after

the filing of a complaint the Commission

determines that the alledged unlawful practice

will have become final and unrectifiable unless

restrained, the Commission may certify the

matter to the City Law Department.

(b) Court Proceedings. The City Law Depart-

ment shall thereupon proceed, in the name of the

Maynor and City Council of Baltimore as soon

as reasonably possible, to invoke the aid of an

appropriate court to secure compliance with

the Commissions's order and with the provisions of

this subtitle, or to prevent final unrectifiable

accomplishment of a practice designated as unlawf;

by this subtitle, as the case may be. The court

shall have power to grant such temporary relief ~—

or restraining order as it deems just and proper

and to make and enter an order enforcing, mod-

ifying, and enforcing as so modified, or setting

aside, in whole or in part, the order of the

Commission. )

The provision of the City Code clearly requi’

that the enforcement action be brought by the May:

and City Council. Unless the proper plantiff_is

substituted the Petition should be dismissed

because of the Commission's lack of capacity to

bring the action in its own name.

Several jurisdictional objections are raised

by defendant. The first is that the complaint

was filed and received by the Commission well

beyond the 18Q day limitation period set forth

in Article IV, section 16(5) of the Baltimore

City Code. Wayne Thomas Owens filed his complain

of employment discrimination base on physical

disability with the Commission on March 31, 1978.

(Exhibit A to the Petition.) He asserted the

APP-8

following: I am a Mechanic and I have been on

sick disability leave since 1962. Prior to going

on leave, I had been employed for approximately

eight years. In 1962 I was injured in accident

(non-occupational) and was unable to work for

approximately 14 months. Following this 14 month

pericd, mypersonal physician, Dr. David Weinberg,

who was familiar with my duties as a m&achanic

issued a release for my return to work. The

company's medical department, after examining me

told me that I had to remain on sick disability

Status because I still had hardware (pin, plates,

etc.) in my leg.

Since 1962, I have made several attempts to

return to work. My most recent attempt was made

during February and March, 1978. I made this

attempt because all of the hardware that was

present in myleg had been removed. I was

examined by Dr. Mendel, company medical department,

and Dr. Filtzer, Orthopedic Surgeon. Dr. Carouge,

who is head of the company medical department

told me that I coult not return to work because

Dr. Filtzdr did not feel that I could perform

the work of a mechanic.

APP=9

Owens was employed by B & O railroad in 195°

and held the position of machinist's helper when

F

he was placed on (unpaid) disability leave in

JULy, 1962. He suffered numerous fractures to hij

right leg and ankle in a motorcycle accicent.

In February 1966 Owens attempted to return to

work, but the company refused to accept him back |

at that time based on the condition of his

right leg. The employer contends that this 1966 |

|

decision not to reinstate Owens triggered the

running of the 18¢-day responds that the limit- ©

;

ation period for Owens’ complaint should date Erg

January 1978 (less than two months prior to his

filing a complaiit when Owens again requested |

reinstatement and was rejected after another |

physical examination. |

B & O Railroad argues that its refusal to i

reinstate Owens in 1978 was merely a inceiineedl

of its 1966 decision, It relies on several fedent

cases in which employers’ not re- |

instate employees were held to be time-barred, —

rather than continuing acts. Layoffs and

terminations are completed acts on a definite

APP-10

date, while hiring and Promotion refusals may

be continuing in nature.

Placement on disability status and refusal

to recall an employee may be analogous to layoff

if the disability is an unchanging conditions,

such as permanent blindness or paralysis. However

Owens'leg injury has healed ot some degree since

his 1962 injury. A factual issue exists regarding

the degree of impairment in 1978. When Owens was

rejected for reinstatement in 1966 he still

had pins and plates in his right leg. This

"hardware" was removed in 1971. It is concluded

by the Master that the possibility of a significant

improvement in Owens physical condition between

1966 and 1978 presents a situation distinguishable

from the reinstatement cases cited by defendant,

It cannot be concluded based on the pleadings that

Owens' complaint filed in March 1978, soon after

the January rejection of his bid for reinstatement,

is time-barred.

Section 20 of Article IV of the Baltimore

City Code requires that enforcement proceedings

be brought by the Mayor and City Council "as soon

as reasonably possible." The Community Rleations

Commission issued its order on December 21, 1981,