Workplace Issues: Retaliation against NYPD officers halted

Lindy Korn

The case of Mullins v. City of New York & The New York City Police Department (docket no. 08-1839-cv), decided on Nov. 16, involved over 4,000 police officers who sued the city alleging systematic violations of their overtime rights under the Fair Labor Standards Act. To streamline the action, the parties agreed that the city would depose a limited number of “test plaintiffs” from various job categories.

After those officers gave testimony, the city went after some of them, claiming they gave inconsistent and false testimony in violation of city rules and demanding that they provide Internal Affairs certain work-related documents.

The union called the document collection a “raid,” and the plaintiffs expressed concern to him that the NYPD was retaliating against them for participation in the lawsuit. One plaintiff, a lieutenant, described being forced to collect documents from other plaintiffs and communicated his apprehension to a sergeant about the NYPD’s approach. Another sergeant referred to Internal Affairs Bureau’s actions as “goon tactics.”

Testimony at the preliminary injunction hearing about the unusual nature of the process used to collect documents confirmed that plaintiffs’ concerns were not unfounded. Sgt. Lisi testified that document collection is typically conducted by administrative lieutenants or integrity control officers assigned to a particular command.

In addition, Sgt. Coughlan testified that Internal Affairs is involved in most cases only when an officer is being arrested or removed from his or her post.

In March 2006, shortly after the document collection, Internal Affairs sent an integrity control officer to attend the deposition of Sgt. Scott, a plaintiff in the lawsuit against the city and NYPD, had given no testimony in connection with the action. Sgt. Scott testified at the preliminary injunction hearing that integrity officers do not normally attend depositions, and that he was “surprised and concerned” by the officer’s presence, and he found it to be “intimidating.” 

When Sgt. Scott’s retirement was administratively deferred pending resolution of an unspecified “disciplinary matter” some months later, it came to light that he was under investigation for testimony he had given during his deposition. Sgt. Scott stated that, at the time, “I believed that if I withdrew from this FLSA lawsuit, the city would close its investigation into my deposition testimony.”

District Judge Scheindlin enjoined the city from engaging in this kind of retaliation and the Court of Appeals (Pooler, Katzmann and Hall) affirms. After ruling for the first time that the trial court may rely on hearsay testimony in resolving preliminary injunction motions, the Second Circuit says the injunction was proper because the NYPD actions after reviewing the deposition transcripts suggest the plaintiffs were victims of retaliation in violation of FLSA.

The Second Circuit relied on a prior holding that “unchecked retaliation subverts the purpose of the FLSA and the resulting weakened enforcement of federal law can itself be irreparable harm in the context  of a preliminary injunction application”; however, a plaintiff must show some evidence of actual chill that would be cured by the requested injunction,” Hui Lin v. Great Rose Fashion Inc., no. 08-cv 4778, 2009 WL 1544749. 

Since the police officers were able to claim irreparable harm without the injunction (as numerous plaintiffs were going to withdraw from the case to avoid punishment), Judge Scheindlin properly granted the injunction.

Witness intimidation resulting from participation in investigations is exactly the type of action that retaliation was meant to prevent. This decision is an important one for putative plaintiffs to read!

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at [email protected] or (716) 845-5500.