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SWAT Team Officers Can Pursue Retaliation Claim

RICHMOND, Va. (CN) - Three SWAT team members who say they were disciplined for complaining about an "intolerable" female recruit can pursue some, but not all of their claims against the Virginia Beach Police Department, a federal judge ruled.

U.S. District Judge Rebecca Beach Smith dismissed three of the officers' due process claims, but allowed stand their claims that they were disciplined in violation of their free speech rights, and that they were deprived of a property interest without due process.

In their complaint the three veteran officers allege that they were disciplined in retaliation for criticizing a female SWAT inductee, Nicole Kosmas. They contend she not only lacked the ability and tactical skills to deal with the kind of high-stress situations SWAT team members routinely found themselves in, but also couldn't handle criticism from her superiors.

"The Plaintiffs allege that Kosmas reacted with hostility to constructive criticism and demonstrated an "intolerable attitude, and disrespectful and antagonistic behavior, and lack of accountability" to her superiors," Judge Smith wrote in her ruling.

Kosmas responded by saying the treatment she was subjected to was gender-based harassment, the plaintiffs claimed. When Kosmas' superiors recommended that she be transferred to a unit of her choice, court documents say, she filed a discrimination suir, and was allowed to stay on.

The City of Virginia Beach denied the allegations, and accused Kosmas of being a "disgruntled employee who refuses to accept the consequences of her own actions"; that is, the veteran cops say, until she filed suit, and the department changed their tune.

The three officers received a memo from the department in early Sept. 2014, charging them with "awareness that [their] subordinates were engaging in inappropriate sexual, racial, and/or religious behaviors in the form of statements and physical gestures." The three officers were suspended for varying punishments between 20 and 40 hours. They allege that because the other officers who did not complain went undisciplined, the department's actions were "arbitrary and pretextual."

On the officers' free speech claim, Judge Smith said "At this juncture, the Plaintiffs have sufficiently pled retaliation claims arising under the First Amendment to the United

States Constitution and Article I, Section 12 of the Constitution of Virginia by properly alleging that (1) their complaints about Kosmas regarded a matter of public concern; (2) their interest in

speaking on such a matter was not outweighed by the Defendants' interest in providing effective and efficient services to the public; and (3) their speech was a substantial factor in the

Defendants' decision to suspend them."

Later, on the plaintiffs' property rights claim, the judge said the officers had sufficiently shown at this juncture that Virginia Beach Police Chief James Cervera had suspended them because he feared potential liability for Kosmas' lawsuit.

"Accepting the allegations in the Complaint as true and giving the Plaintiffs the benefit of all reasonable factual inferences, the Plaintiffs have sufficiently alleged that Cervera was biased in bringing disciplinary charges against them, thus rebutting the presumption that he acted impartially. Accordingly, the Plaintiffs have stated a claim for deprivation of a property interest, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution," Judge Smith said.

EDITOR'S NOTE: This article was updated after its publication on March 10, 2015, because the original version improperly suggested that a federal judge dismissed the allegations in their entirety. In fact, the ruling that the article summarizes preserves two of the plaintiff's claims. The surviving claims allege that the City of Virginia Beach and its Police Department disciplined the plaintiffs in violation of their free-speech and due-process rights. Courthouse News regrets the error.

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