By John V. Berry, Esq., BERRY & BERRY, PLLC, www.berrylegal.com
In an interesting case involving a group of police sergeants, the New York Police Department (NYPD) was ordered to cease their internal investigations into police sergeants related to their Fair Labor Standards Act (FLSA) claims. In Mullins v. City of New York, 2010 WL 4609208 (2nd Cir. 2010), the U.S. Court of Appeals for the Second Circuit upheld a ruling by the U.S. District Court for the Southern District of New York which barred NYPD internal affairs investigators from conducting investigations related to the FLSA claims until the FLSA litigation ended.
The plaintiffs in the Mullins case were approximately 4300 current and former New York City police sergeants that had filed FLSA claims against the NYPD for systematic violations of their overtime rights. The police sergeants had filed suit under the FLSA on April 19, 2004 and began to see the NYPD’s legal defense initiate department investigations against some of the plaintiffs through the use of the NYPD Internal Affairs Bureau (IAB) being brought into the case. Specifically, the NYPD’s IAB had been provided, through NYPD’s counsel, with deposition testimony from some of the police sergeants and began to review them for what appeared to be investigatory purposes. In addition, at some of the later depositions, NYPD IAB began to send IAB agents to attend civil depositions of some of the police sergeants. In addition, the NYPD started to order some of the plaintiffs to become document collectors within the NYPD for documents related to the FLSA case.
Finally, the law firm representing the NYPD in the FLSA litigation apparently filed an internal affairs complaint against some of the police sergeants related to the FLSA litigation. These complaints were then investigated by the Chief in charge of IAB directly, with interviews taking place in his personal office, something that was highly unusual. The police sergeants sought an injunction against the NYPD from conducting investigations related to their FLSA case until such time as the litigation ended. The U.S. District Court agreed and issued an injunction against NYPD and they appealed.
The Court of Appeals agreed that the conduct in question by NYPD warranted the injunction. Specifically, the Court of Appeals for the Second Circuit upheld the U.S. District Court’s opinion, reasoning as follows:
“Regarding the causal connection between the NYPD's actions and Appellees' participation in this lawsuit, we think the link is self-evident, and the district court did not err in concluding as much-IAB investigated the veracity of testimony given by the sergeants as part of the lawsuit. Moreover, the sequence, timing and nature of events only reinforces the connection. The day after the NYPD received transcripts from the depositions of certain test plaintiffs, IAB was dispatched to collect documents from the first group of plaintiffs. As testimony indicated, this was unusual in and of itself, because such documents are typically collected by Administrative Lieutenants or other officers in the individual precincts-not IAB. About seven weeks after the document collection, Sergeant Scott was scheduled to be deposed.
Though he had given no testimony in connection with the lawsuit up to that point, an IAB officer appeared to observe his deposition. When Sergeant Scott was set to retire some months later, he was informed that his retirement was being held up by a pending “disciplinary matter,” which turned out to be an investigation into his deposition testimony. Then, three months after the district court issued its summary judgment order, the NYPD ordered Sergeant Cioffi to submit to a GO-15 interview regarding his deposition testimony. Testimony at the preliminary injunction hearing revealed that even if it had not been unusual for the NYPD to investigate an employee based upon depo-sition testimony in connection with a pending lawsuit, this GO-15 interview was unusual because it took place at the office of the Chief of IAB.”
The Court of Appeals then upheld the order barring NYPD from conducting investigations related to the FLSA case, finding that retaliation discourages the filing of FLSA complaints:
“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 Civ. 4778, 2009 WL 1544749, at *21 (E.D.N.Y. June 3, 2009) (internal quotation marks omitted) (citing inter alia, Bennett v. Lucier, 239 Fed.Appx. 639, 640 (2d Cir.2007)). Thus, we have held that “[a] retaliatory discharge carries with it the distinct risk that other employees may be deterred from protecting their rights ... or from providing testimony for the plaintiff in [his] effort to protect [his] own rights. These risks may be found to constitute irreparable injury.” Holt v. Continental Group, Inc., 708 F.2d 87, 91 (2d Cir.1983).”
In this type of case, a police department’s best option is to not interfere with ongoing litigation or been seen as attempting to manipulate outcomes or witnesses through the use of department resources. The purpose behind the FLSA is to encourage those that have overtime compensation complaints to come forward, not to discourage law enforcement officer FLSA complaints with potential retaliation for coming forward. In Mullins, clearly the unusual and out of the ordinary actions, in addition to the timing of the NYPD investigation along with other events showed that NYPD was attempting to interfere in the FLSA litigation, forcing the U.S. District Court to act to protect the police sergeants involved in the underlying litigation.