The Police Law Blog

Wrongfully Terminated Police Lieutenant Files Federal Lawsuit Against Town

By John V. Berry, Esq., www.berrylegal.com

In an interesting wrongful termination case, filed on January 20, 2012 in U.S. District Court for the District of Massachusetts, a police lieutenant, in the Town of Wareham, Massachusetts has filed a lawsuit against his town alleging a number of improprieties in his firing.  In particular, the police lieutenant involved had been terminated for the alleged improper use of his town-issued cell phone, in addition to allegedly using his position as a police officer to sell alarm systems. 

Apparently, the backstory in this case involved elected officials who apparently were not fond of the lieutenant related to a promotion issue and sought to have him disciplined by the Town Administrator.  The Town Administrator asked the Chief of Police to review the allegations at issue and he refused to imposed serious discipline as a result of a lack of a telephone policy within the Department.  As a result, the Town Administrator was apparently placed on leave by the Board of Selectmen for not taking stronger action against the lieutenant.    

Of important note is the fact that the lieutenant appealed his termination to the Civil Service Commission who reviewed the termination and unanimously voted that the lieutenant had been wrongfully terminated.  The police lieutenant was given his position back and awarded back pay for his losses.  The police lieutenant returned to his position in June, 2011. For the actions associated with the wrongful termination, the police lieutenant filed suit and is seeking compensatory and punitive damages in addition to attorney fees.  

A copy of the Complaint is attached here.  Download Bliss v Wareham

 

Terminated Police Officer Wins Reversal in Court

By John V. Berry, Esq., www.berrylegal.com

The Court of Appeal for California, in Anderson v. City of Los Angeles, Super. Ct. No. BS120430 (Mar. 30, 2011), recently affirmed the decision of a trial court to reinstate a police officer with the Los Angeles Police Department (LAPD) who had been terminated for neglecting to request compensation for having worked overtime.  The trial court in this case found that no other officers within LAPD had ever been disciplined for failing to seek payment for overtime that they had worked and ordered the officer reinstated. 

On appeal, the LAPD argued that they should be permitted to re-evaluate the penalty to be assessed on the officer, instead of a blanket reinstatement and sought reversal.  The Court of Appeal in this case disagreed, finding:

“Significantly, the gravamen of this charge is the failure to request compensation for working overtime, not working unauthorized overtime. In fact, the charging allegation did not differentiate between authorized and unauthorized overtime. Although Anderson did admit that she committed misconduct by working unauthorized overtime and that she did not ask to be paid for the overtime she worked, as the trial court found, defendants have failed to point to a statute, rule or regulation, in force at the time the alleged misconduct was committed, that makes it an act of misconduct for a police officer to work overtime, whether authorized or unauthorized, and not ask to be compensated for it. Although Order 20 issued September 3, 1999 does state that overtime is to be reported on a specified form, it does not advise employees that the failure to do so is misconduct or will subject them to discipline and possible termination.

The trial court determined that the conduct charged against Anderson in count 1 did not constitute misconduct in the first instance. It is for this reason it concluded that Anderson's guilty plea, along with her deposition testimony, did not support the Board of Right's finding of guilt on count 1. Because we conclude that substantial evidence supports the trial court's determination with regard to count 1, and defendants do not challenge the trial court's decision to grant writ relief as to counts 2 and 3, we have no basis for disturbing the judgment of the trial court.”

Id. 7- 9 (emphasis added).

CONCLUSION

The Anderson case illustrates the point that police departments that either invent new types of charges, or selectively prosecute administrative charges that have not been charged for similar conduct by others in the past, subject themselves to possible reversal in court, arbitration or before local merit systems review boards on appeal.  Departments that seek to charge new types of misconduct should first develop new policies coverage these issues, bargain where appropriate with police unions, and then fully explain and train police officers on issues that could rise to charges of misconduct.   

Police Officer USERRA Military Retaliation Case Remanded for Trial

By John V. Berry, Esq., www.berrylegal.com

The U.S. Court of Appeals for the Fourth Circuit, in a case involving a police officer employed by the Town of Ocean City, Maryland, recently held that the U.S. District for the District of Maryland partially erred in dismissing the police officer’s USERRA retaliation case.    The case, Bunting v. Town of Ocean City, No. 10-1140 (Unpublished Dec. Jan 31, 2011), found that the officer had in fact established a USERRA retaliation case that could proceed to trial.

FACTUAL BACKGROUND

Sergeant Bunting was employed by the Ocean City Police Department.  At the same time, he was also a member of the U.S. Coast Guard Reserve.  During a period of active duty, Sergeant Bunting missed out on an opportunity for promotion.  He subsequently complained in 2004 that he had not been selected on the basis of military discrimination.  Sergeant Bunning’s complaint was investigated by the Department of Labor (DOL-VETS) program. 

While the investigation was ongoing, another promotional opportunity arose in 2007 with the police department, and he did not receive this promotion as well.  Sergeant Bunning then filed suit for the original military discrimination issues under USERRA that had occurred in 2004, as well as the retaliation that occurred as a result of the non-promotion in 2007 based upon retaliatory grounds.

The Fourth Circuit affirmed the U.S. District Court’s finding that it was appropriate to dismiss the 2004 promotions/military discrimination claim, but reversed the District Court on the 2007 promotions/retaliation claims, reinstating Sergeant Bunning’s suit. 

LEGAL HOLDING BY THE COURT

The Fourth Circuit, in reinstating Sergeant Bunting’s USERRA retaliation claim for the 2007 promotion, held that he had established enough evidence to lead a reasonable jury to the conclusion that he had been retaliated against for exercising his rights under USERRA:

“We have reviewed the record, and we conclude that Bunting has adduced evidence rising to the level of a disputed issue of material fact. When DiPino was notified of Bunting’s complaints to the mayor, she informed Ocean City’s attorney that she was referring Bunting to the OCPD’s internal affairs bureau. In addition, Ocean City responded to the DOL-VETS’s communication by implying that Bunting would face discipline for failing to comply with OCPD policies. In light of the fact that these threats of discipline were made in response to protected USERRA activities, the statements clearly raise the specter of retaliation. Finally, in evaluating Bunting for a promotion in 2007, one senior officer commented that Bunting was unfit for promotion because he filed actions against the OCPD. We conclude that these facts could lead a reasonable jury to find that Bunting may have received promotions in 2005 and 2007 if he had not engaged in protected activities, i.e., complaining to the mayor and filing a USERRA complaint with DOL-VETS.”

THOUGHTS ON THE HOLDING OF THE COURT

This is a good decision from the Fourth Circuit with respect to USERRA retaliation claims.  USERRA retaliation cases tend to be more likely to be sustainable in court when comparted to lawsuits brought on the original claims of discrimination itself.  Furthermore, USERRA retaliation claims are usually much better received by the courts than other types of retaliation cases (e.g. those for discrimination under the Civil Rights Act) given Congressional intent to protect military personnel from acts of retaliation.     

Baltimore Police Officer Files Suit in Shaving Case

By John V. Berry, Esq., www.berrylegal.com

A Baltimore police officer, Anthony Brown, has filed a lawsuit in Brown v. Baltimore Police Dep’t, Civil No. 11-CV-00136 (D. MD Jan. 2011), alleging that he was personally injured and humiliated when supervisors ordered him to shave in front of other officers. The police officer, an 18-year department veteran of the Baltimore Police Department, filed suit against the Department in U.S. District Court for the District of Maryland.

The officer had suffered from a skin condition which might shaving difficult, if not imopossible and had provided a physician’s note about these medical issues prior to his supervisor's order that he shave. Apparently, the physician’s note was ignored by supervisors and the officer was ordered to shave in front of the other officers, without water or a mirror.

Officer Brown has filed suit against the Baltimore Police Department regarding the forced shaving under Title VII of the Civil Rights Act, Title 20 of the Annotated Code of the State of Maryland, and 42 U.S.C. 1981, 42 U.S.C. 1983, and 42 U.S.C. 1985 along with a number of other legal theories. The officer has further contended that his complaints resulted in poor performance evaluations, withdrawal of overtime opportunities and discrimination against him based on his medical condition. A copy of the latest version of the amended complaint in this case can be downloaded here Download Shaving Lawsuit

 

Interesting New LEOSA Case in the Context of Section 1983 Police Lawsuit

By John V. Berry, Esq., Berry & Berry, PLLC, www.berrylegal.com

In a new case, Bladdick v. Pour, Civ. No. 09-cv-330-WDS (S.D. Ill. Dec. 8, 2010), the U.S. District Court for the Southern District of Illinois has interpreted the Law Enforcement Officers Safety Act (LEOSA), in the context of a lawsuit under 42 U.S.C. § 1983. The Bladdick case make the argument that individual officer personal liability might be avoided when and if an officer does not comply with departmental LEOSA policies.

BACKGROUND

The Bladdick case involved a civil action dating from an incident that had occurred between November 8, 2008 and November 9, 2008 in the parking lot of a sports bar.  During the time in question, a number of off-duty City of St. Louis police officers had been present at a sports bar in Granite City, Illinois.  Three of the off-duty officers, including the defendant, Officer Pour, had been carrying their service weapons.  Officer Pour was at one point asked to leave the sports bar due to his alleged level of intoxication.

Officer Pour then went to the parking lot, where he was apparently discovered by the plaintiff in the lawsuit on the ground.  The facts are not clear, but the plaintiff allegedly attempted to help the officer up.  There was some dispute about what was said between the officer and plaintiff, but the plaintiff was shot in the torso by the police officer.  During the incident, the officer had not been wearing his uniform, did not display his badge, nor did he provide any indication that he was a police officer.

In response to the lawsuit against the officer under 42 U.S.C. § 1983, the police department had argued that the officer had not been acting “under the color of state law.”  The importance here is the personal liability of the individual officer under Section 1983. 

COURT’S DECISION

The U.S. District Court found that the officer had not been acting under the color of state law and therefore that the case was not actionable against him under 42 U.S.C. § 1983.  In particular, the U.S. District Court found, in part, that the officer could not be subject to the Section 1983 claim, in part, because of his police department’s LEOSA policy:

"The nature of Pour's act was purely personal and not in furtherance of any official duty. This late night parking lot scuffle, which ended with the shooting of plaintiff by an intoxicated individual did not occur because Pour was clothed with the authority of state law. Furthermore, when plaintiff helped Pour up off the ground and Pour turned and shot him, he certainly misused his service weapon. However, in light of the evidence before the Court, the Court does not find that Pour's misuse of power was only made possible because Pour was "clothed with the authority of state law." In fact, Pour was stripped of his authority as a state actor as a result of his intoxication and the relevant policy that relates to intoxication.

The Board has provided a copy of the Department procedures which state that an officer is not to act while intoxicated. The Department procedure, which sets forth procedures for complying with the Law Enforcement Officer Safety Act ("LEOSA"), which authorizes the concealed carry of firearms, specifically provides: "LEOSA does not provide authority for a person to carry a concealed firearm while under the influence of alcohol or any other intoxicating or hallucinating substance." (Special Order SO 1-05, Doc. 72, Exhibit C.)"

The court then found that Officer Pour was not acting under the color of state law and because an action under color of state law is a jurisdictional prerequisite to a section 1983 claim, the court found that plaintiffs claim against Pour in his individual capacity had to be dismissed.  

LEGAL THOUGHTS

This is another opinion which impacts upon the interpretation of LEOSA.  Interestingly, the opinion makes the determination that the police department’s LEOSA policy, which the officer apparently was not in compliance with, helped the officer to avoid potential personal liability.  Given that individual police departments have typically instituted rather detailed and strict LEOSA policies in recent years, this may prove to be another effective method of defending an officer against personal liability in civil actions when police officers are sued in their individual capacities. 

 

                                                                                                                                       

Court Invalidates City Attempt to Merge Police and Fire Departments

By John V. Berry, Esq., www.berrylegal.com

In an interesting legal decision, the Michigan Court of Appeals, in Harper Woods Fire Fighters Assoc. v. City of Harper Woods, No. 293062, 08-123054-CZ (Mich. Ct. App. Jan. 4, 2011), struck down an attempt by the City of Harper Woods, Michigan to combine their police and fire departments. 

BACKGROUND

The City of approximately 15,000 residents, in Metro Detroit, originally had two separate departments for police and fire responsibilities. This changed in 2008, when the mayor of the City sought to merge the two departments.  In May of 2008, the City Council voted to merge the departments and to cross-train police officers and firefighters to serve both roles.  The program was apparently initially enacted to save on costs.  Eventually issues developed with the proposed program.

In mid-September, 2009, the Firefighters’ union brought suit against the City in regards to the merger and cross-training of police and fire personnel.  The union had sought and was granted an injunction against the City regarding the new program because it had violated the City Charter.  The City appealed the lower court’s decision to the Michigan Court of Appeals.

THE COURT’S DECISION TO INVALIDATE THE MERGER

The Michigan Court of Appeals affirmed the lower court’s action invalidating the merger, evaluating the case as follows:

The City asserts that interpreting Section 4.5 to prohibit its cross-training program would result in harm to the public. The City believes that the overall purpose for public safety services is to serve and protect, and a cross-training program is the most sensible way to accomplish this because it gives more people the skills to help others in emergency situations.

We disagree. Suggesting that not combining the functions of these departments will result in dangerous situations is itself absurd. Having separate departments for fire emergencies and law enforcement may allow both departments to function properly in a majority of situations. The trial court's ruling does not suggest that the police department is prohibited from acting during a fire emergency. The trial court stated that assisting any person in danger during fire emergencies is well within the police department's authority. This ruling allows both the police and fire departments to function properly as separate entities and does not create an absurd result contrary to public policy.

FINAL THOUGHTS ON THE CASE

This type of case appears to be on the front of an upcoming move by many state and local departments to attempt to save on costs as budgets are stretched.  While the case involved the interpretation of a specific city charter, I think that the overall tone of the decision was clear in that the Court of Appeals very much disapproved of the merger of the police and fire functions, referring to the attempt to merge the departments as “an absurd result contrary to public policy.” 

We are likely to see other variations of the merger issue come up in the future and I expect additional cases to involve these types of issues until the economy recovers.  

 

Merit Systems Protection Board Reverses Removal of Chief of Police

By John V. Berry, Esq., Berry & Berry, PLLC, berrylegal.com

In a fairly detailed legal opinion by the Merit Systems Protection Board in Chambers v. Department of Interior, 2011 MSPB 7 (Jan. 11, 2011) the MSPB has reversed a 2004 decision by the Department of Interior to remove former U.S. Park Police Chief of Police Teresa Chambers.  The ruling orders Chief Chambers' reinstatement to her former position within 20 days of January 11, 2011, along with backpay, and attorney fees.  

The reversal by the MSPB, following a number of years in litigation and appeals, is based upon a finding that the Agency retaliated against Chief Chambers for her whistleblowing activities under the Whistleblower Protection Act (WPA).  The decision provided only 20 days in which to reinstate Chief Chambers to her former position.  With an incumbent currently occupying the position, this sets up a number of issues for an appeal to the U.S. Court of Appeals for the Federal Circuit if one is filed.  The deadline to file an appeal is 60 days from the date of the decision (60 days from January 11, 2011).

For a copy of the entire legal opinion, download it here. Download 201101 Chambers MSPB Opinion

U.S. Court of Appeals Bars FLSA retaliation by NYPD Internal Affairs Unit

 

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.

BACKGROUND

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.

RULING

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).”

THOUGHTS

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. 

Successful Canine/K-9 Animal Care Lawsuit by Police Officer Under FLSA

By John V. Berry, Esq., BERRY & BERRY, PLLC, berrylegal.com

In a recent case, Lewallen v. Scott County, Tennessee, 2010 WL 2757145 (E.D. Tenn. July 13, 2010), a police officer successfully brought claims under the Fair Labor Standards Act of 1938 (FLSA) for animal care (canine)/K-9 time that was not paid by the officer’s employer. 

 BACKGROUND

The officer, Kristofer Lewallen, was a K-9 officer with the Scott County, Tennessee police department.  His police dog was trained in narcotics detection and was certified as a narcotics detection dog.  Officer Lewallen was not compensated for any of the time he cared for and had trained his police dog, although the Department paid for food, veterinary care, and other necessary items for the canine.

During K-9 Officer training, about a year after he was hired, in 2007, Officer Lewallen learned for the first time that K-9 officers should receive extra compensation for the time they spent with the canines off the clock.  Officer Lewallen researched this issue and brought it to the Department’s attention.  Subsequently, about two months later, the Department suspended the canine program.  Despite the suspension of the program, Officer Lewallen still had to care for and train his police dog since he still had possession of the canine.  The officer kept training logs for his police dog and submitted them to the Chief of Police.

Officer Lewallen had asked for overtime compensation for these duties, from the Chief, but received no response about whether the Department would provide this compensation.  Eventually, Officer Lewallen filed suit against the Department, seeking 874 days of FLSA overtime related to the care and training of his canine.  

COURT'S RULING ON FLSA ANIMAL CARE

The U.S. District Court, in the Lewallen opinion, by Judge Leon Jordan, found in favor of Officer Lewallen’s claims under the FLSA.  In the ruling, Judge Jordan found that:

Sheriff Carson ordered Lewallen to pick up a black Labrador dog named J.J. and to begin working with the dog in the hope that J.J. eventually would be trained as a narcotics detection dog. J.J. was to live with and to be taken care of by Lewallen, but he was not Lewallen's dog as evidenced by the fact that the Sheriff had the dog picked up from Lewallen when he was demoted.

Sheriff Carson wanted Scott County to have a certified narcotics dog and K-9 officer, as did Sheriff Lay, and the sheriffs were certainly aware that keeping a dog at home would require taking care of it beyond Lewallen's scheduled shifts. Even if Sheriffs Carson and Lay were not aware of the exact amount of time needed to care for and train a narcotics dog, they required Lewallen to perform these activities with J.J.   Sheriff Lay was informed that Lewallen thought he should get paid for taking care of and training J.J. when he was off duty, but he did nothing to curtail Lewallen's time spent with the dog, other than suspending the K-9 program for a few months.

Sheriff Lay scheduled the training of J.J. and Lewallen in narcotics detection, and Scott County paid for J.J.'s food, veterinary bills, and other necessities. As the Sixth Circuit held in Brock, Scott County ‘required the officers to take the canines home with them, look after them at all times, keep them well-nourished and in good health, and have them ready for recall to active service at a moment's notice.’

The court finds that the care and training of J.J. was for the benefit of Scott County, and an integral and indispensable part of the County's K'9 program. After he was certified, Lewallen's principal activity for the Sheriff's Department was working as a K-9 officer. Thus, the time Lewallen spent caring for and training his canine is compensable work.

Lewallen, at *3-4 (citations omitted).

In the ruling, Judge Jordan noted that there had not been a compensation agreement in place which might have alleviated the issue under Section 785.23 of the U.S. Code of Federal Regulations.  The Department had tried to pay Officer Lewallen a generic sum of $1,000 to cover all of the losses, but Officer Lewallen did not accept this  amount, turning the Department’s check over to his attorney.  The court in this case found that the Department’s action was unilateral and did not constitute an agreement under Section 785.23. 

Finally, the court awarded Officer Lewallen, both the lost overtime claimed, in the amount of $21,719.98, and liquidated damages for the earlier non-payment, leaving the Department to pay a total of $43,439.96 in compensation to the officer.  The court later awarded $66,261.20 to the officer’s law firm for legal fees in this matter.  It appeared that the Department subsequently filed a notice of appeal in this matter, but then voluntarily dismissed the action, leaving the judgment standing. 

CONCLUSION

Departments should address these types of overtime claims as soon as possible, rather than hope that they go away.  These kinds of cases can ultimately end up costing the Department much more when a suit of this type is brought under the FLSA.  Looking at the totals spent by the Department in this case, not including their own costs for legal defense, they spent at least $110,000 for a claim which originally amounted to $21,719.98. 

Police Officer Fired Over FLSA Testimony Wins Jury Award

By John V. Berry, Esq., Berry & Berry, PLLC, berrylegal.com

In a very interesting case, which should remind police departments not to retaliate against police officers and supervisors with respect to overtime issues, a police department was held liable for overtime retaliation.  A former patrol officer with the Los Angeles Police Department (LAPD) was awarded a $4,000,000 judgment on November 2, 2010 by a jury after it concluded that the officer’s termination was the result of having testified in an earlier Fair Labor Standards Act (FLSA) case.

The case, Romney v. LAPD, Case No. 09-cv-03048 (VBF) (Judgment Nov. 2, 2010) was filed first in the Superior Court of California for the County of Los Angeles on April 9, 2009 and then removed by the LAPD to the U.S. District Court for the California Central District because of the federal FLSA claims.

Factual Background

Officer Romney was an 18 year veteran of the LAPD, progressing through the ranks with a good record within the Department.  In January of 2008, Officer Romney, by subpoena, was called to testify in another officer’s FLSA overtime case that had been filed earlier, in 2006.  Officer Romney provided honest testimony in the FLSA case, as he was required to do, much to the chagrin of supervisors. 

In Officer Romney’s statements under oath, he explained the overtime policies of the LAPD and why, pursuant to unwritten rules in the LAPD, that he did not submit overtime slips for overtime that he had worked.  No less than a week after he had testified in January of 2008, the LAPD initiated an internal affairs complaint, filed by supervisors, claiming that Officer Romney should be disciplined for insubordination in not submitting overtime slips.  This action was taken despite the fact that this was the practice mandated through the department by supervisors.

Following the investigation, two recommending captains recommended that Officer Romney be issued a one-day suspension.  However, the LAPD Chief of Police, William Bratton, disregarded the recommendation and ordered Officer Romney’s dismissal.  Following the termination, Officer Romney appealed his termination by filing the lawsuit which was eventually heard before U.S. District Judge Valerie Baker Fairbank and a jury. 

Jury Holds that the LAPD’s Retaliation was Unlawful

On November 2, 2010, a U.S. District Court jury found in Officer Romney’s favor, ordering a recovery of $3,999,945, liquidated damages and attorney fees.  The opinion was issued on November 8, 2010.  It is unknown yet whether or not the LAPD will appeal the decision. 

For a copy of the original complaint filed in Superior Court, and then removed to U.S. District Court in Central California, click here. Download LAPD FLSA Retaliation Complaint