Invoking the imagery of a shipwreck, a federal judge has fined an Owings Mills-based lawyer $5,000 for pursuing an age discrimination lawsuit long after it was clear he had no case.
“Attorneys are entitled, and sometimes even obligated, to sail into shallow waters as investigation and discovery reveal weaknesses in the factual and legal theories of a case,” Judge James K. Bredar wrote in U.S. District Court in Baltimore. “However, once the ship has not just bumped a shoal or two, but instead has collided with rocks and begun to take on water, the voyage is over and counsel is required to drop his sails.”
Jason A. Ostendorf’s clients claimed they were fired by The Arc of Howard County due to their age, but failed to produce any evidence to rebut the Arc’s claim that they were fired for losing a patient they were supposed to be transporting, then trying to cover up their error.
At various points in his 15-page memorandum, the judge called Ostendorf’s decision to continue the litigation “objectively unreasonable,” “inexplicable” and “preposterous.”
For persisting on such a path, Ostendorf drew a punishment that, while not even a twelfth of what the Arc’s attorneys requested, could sting the solo practitioner who claims to make $35,000 to $40,000 a year.
Bar Counsel Glenn Grossman declined to comment on Friday about potential additional consequences of Ostendorf’s conduct in The Arc case, but Grossman’s predecessor, Melvin Hirshman, said the judge’s decision would at least put it on bar counsel’s radar.
“Chances are, it should come to the attention of the Attorney Grievance Commission and the issue is what they want to do with it,” Hirshman said.
Ostendorf sued the nonprofit, which serves people with mental disabilities, and two of its senior staff members in December 2009 on behalf of 66-year-old Lorenda Moody of Woodlawn and 63-year-old Clarence Weefur of Glen Burnie.
Moody and Weefur, whose job duties included patient transport, had been fired in May 2009 after they mistakenly believed they had picked up an Arc patient and then, when they couldn’t find her at the facility, concocted fictitious stories to try to hide their error, according to The Arc.
Moody and Weefur, however, claimed they had been fired because of their age.
Ostendorf also pressed ahead with claims against Associate Executive Director Debbie Wagner and Director of Human Resources Naomi Lyvers even after their attorneys presented him with controlling 4th Circuit authority that held individuals cannot be sued under the Age Discrimination in Employment Act.
Bredar granted the defendants summary judgment on June 8 and held the sanctions hearing June 16.
There, Ostendorf stood his ground, insisting that he could not be sanctioned for arguing a “minority view” because the U.S. Supreme Court had never ruled on individual liability under the ADEA.
Ostendorf compared himself to 1950s-era civil rights attorneys who sought to overturn then-legal racial discrimination. At least, that’s what the judge assumed Ostendorf meant.
“Actually, believing that it overruled the Dred Scott decision, Counsel cited Plessy v. Ferguson as an example of the Supreme Court overruling a settled but unjust precedent. This, of course, was not the case,” Bredar wrote in a footnote. “Rather, Plessy is notorious for endorsing the constitutionality of racial segregation, and was itself overruled in Brown v. Board of Education.”
Bredar gave Ostendorf 60 days from the July 7 order to pay the fine, but The Arc isn’t likely to see its money for a while longer. Ostendorf, who advertises aggressive, experienced representation on his website, has appealed the sanction.
Ostendorf did not return a call requesting comment on Thursday.