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4th Circuit upholds dismissal of lawsuit claiming MDOT leaders retaliated against union


The head of the union representing bus drivers said Maryland Department of Transportation leaders retaliated against him after he criticized the Maryland Transit Administration. (File photo)

A federal appeals court has affirmed the dismissal of a First Amendment retaliation case filed by the head of a local transit union against Maryland Department of Transportation leaders.

David McClure, head of the Amalgamated Transit Union Local 1300 representing bus drivers and operations workers, alleged officials unconstitutionally limited his privileges in retaliation for his vocal criticism of the Maryland Transit Administration.

McClure and the union filed suit in U.S. District Court in Baltimore in 2017 after officials restricted his access to agency property and removed him on at least two occasions. The defendants included former head of the MTA Paul Comfort and other MDOT leaders.

A U.S. District Court judge granted summary judgment to the defendants. On Tuesday, the 4th U.S. Circuit Court of Appeals affirmed the trial judge’s ruling, finding that McClure’s interest in accessing restricted MTA property was outweighed by the government’s interest in regulating that access.

“MTA officials extended a courtesy to Local 1300 officers by allowing them keycard access to spaces closed to the general public,” Judge Diana Gribbon Motz wrote on behalf of the three-judge panel in a published opinion. “This grant of access was purely discretionary, with no process governing it.”

The panel agreed with the trial court’s determination that the impact on McClure and the union was not significant, even assuming the defendants’ actions were in retaliation for protected speech. Motz was joined by Judge G. Steven Agee and Judge Julius N. Richardson.

McClure and the union were represented by Thomas Geoghegan of Despres, Schwartz & Geoghegan Ltd. in Chicago. Geoghegan was not immediately available for comment.

In July 2016, the union launched a campaign to highlight alleged safety issues, releasing reports, circulating petitions and hosting town halls. McClure also appeared in the media to discuss the union’s concerns.

During this period, McClure performed his ordinary union duties, which included representing members in employment disputes. During a hearing in September 2016, McClure had a confrontation with the hearing officer, who filed an internal charge alleging McClure verbally harassed her.

Louis Jones, the director of the MDOT Office of Diversity and Equity, described McClure’s behavior as intimidating and threatening and announced that the MTA was suspending his keycard access to restricted areas. Jones asked for assurances that McClure would conduct himself “in a professional manner” and said that, if he did not, the agency would require him to obtain permission before entering any MTA offices.

McClure failed to provide any assurances and continued to attend hearings without requesting permission. On at least two occasions, McClure arrived for hearings and was escorted by police from the premises after the hearing officer notified her supervisor. The hearing officer retired in June 2017, but the MTA did not reinstate McClure’s keycard access.

“When McClure upset an MTA employee by criticizing her work, the MTA revoked this discretionary courtesy and further asked McClure to seek permission before attending hearings where that same employee might be in attendance,” Motz wrote. “(The) MTA has a critical interest in managing a productive work environment for its employees and limiting outside disruptions.”

The officials’ actions also did not violate McClure’s Fourth Amendment rights when he was escorted off MTA property by police because the officers acted reasonably, according to the court.

The case is David McClure et al. v. James Ports et al., No. 18-1065.

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