Protection Order Upheld|for NYPD Sergeants

(CN) - The 2nd Circuit upheld an order barring the New York Police Department from investigating or disciplining sergeants for participating in a lawsuit demanding overtime pay. One sergeant described the NYPD's actions as "goon tactics."

About 4,300 current and former sergeants sued the NYPD and New York City in 2004 for allegedly violating their rights to overtime pay under the Fair Labor Standards Act.

Because there were so many plaintiffs, the parties agreed to limit depositions to three groups of "test plaintiffs," from 17 job categories.

In 2006, the NYPD ordered lieutenants from the Internal Affairs Bureau (IAB) to collect command logs, memo books, activity reports, overtime slips and requests for leave from all test plaintiffs and the people who worked with them.

Some of the IAB collectors were plaintiffs in the labor complaint who had since been promoted to lieutenants. They worried that the collection order was in retaliation for their participation in the lawsuit, as the IAB typically only gets involved when an officer was being arrested or fired.

One sergeant described the collection process as a "raid," while another referred to the IAB's actions as "goon tactics."

In the case of Sgt. Edward Scott, the IAB sent an officer to attend his deposition, a presence he found "intimidating." A few months later he learned he was under investigation for his deposition testimony, a move he saw as an effort to get him to withdraw from the labor lawsuit.

The NYPD postponed his retirement pending the outcome of the investigation.

Another sergeant was similarly investigated on charges of perjury and false statements in connection with his deposition.

The plaintiffs sought and won a preliminary injunction barring the NYPD from "retaliating against plaintiffs due to their testimony in the ... action and attempting to coerce plaintiffs to alter their sworn deposition testimony."

New York City and the NYPD appealed, arguing that the federal judge improperly accepted hearsay statements in granting the injunction, and that the charges were time-sensitive enough to warrant immediate investigations, regardless of the pending labor complaint.

The Manhattan-based federal appeals court rejected these arguments and said the injunction "continues to be necessary" in light of the evidence. It also upheld the lower court's acceptance of hearsay in granting the injunction.

Judge Rosemary Pooler noted that the NYPD's time-sensitive argument doesn't explain why the IAB was instructed to collect documents from all test plaintiffs, even those not suspected of perjury, or why an IAB officer attended Scott's deposition before there was any basis to charge him with lying.

Pooler determined that the plaintiffs were likely to win their retaliation claim. Without an injunction, she said, many sergeants might abandon the labor claim.

"[I]t is clear that the preliminary injunction has minimized the harm to [the sergeants] and continues to be necessary to protect the sergeants so long as the legal proceedings are ongoing," Pooler concluded.

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