By Thomas Gearon
By investigating a police sergeant for perjury based on his testimony in an overtime lawsuit under the Fair Labor Standards Act (FLSA), the New York Police Department created a threat of “irreparable harm” to employees that warranted the issuance of a preliminary injunction, a federal court in New York ruled March 21, 2008, Mullins v. New York, S.D.N.Y., No. 04 Civ. 2979 (SAS) (3/21/08).
Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of New York said that allowing the Police Department’s Bureau of Internal Affairs to interrogate a sergeant about his testimony while the civil lawsuit was in progress could encourage other employees to drop out of the collective action and unfairly gave the City a second chance to question the sergeant about his overtime claim “long after discovery has ended.”
Finding that the sergeant’s deposition testimony about his duties should not be the basis for perjury charges “when the whole point of the lawsuit is to determine what those responsibilities are,” Scheindlin enjoined the City and its Police Department from investigating or disciplining any plaintiff “based on his or her testimony of participation in this lawsuit.”
Sergeant Testified In FLSA Proceeding
According to the Court, more than 4,300 plaintiffs have joined in the FLSA action, claiming that they are entitled to overtime pay for work performed from April 2001 to the present.
Because of the large number of plaintiffs, the parties to the lawsuit agreed in May 2005 to designate a number of individuals employed in 16 job categories as test plaintiffs, so that discovery could be conducted expeditiously in the case. A number of the test plaintiffs gave depositions in the lawsuit describing their duties and responsibilities. This sergeant was deposed by the defendants’ attorneys on November 15, 2005, the Court said.
On November 6, 2007, Scheindlin granted summary judgment in favor of the employer on the question of FLSA liability in a ruling that affected six job categories that were disputed in the lawsuit. Citing Department of Labor regulations that were in effect before August 23, 2004, Scheindlin held that the test-group sergeants were performing work that was exempt under the FLSA.
On January 10, 2008, the Court certified to the United States Court of Appeals for the Second Circuit that allowing the plaintiffs to proceed with an immediate appeal of her ruling would “materially advance the termination” of the lawsuit that was filed in 2004. The Second Circuit has not yet ruled on the appeal, and other issues in the lawsuit remain unresolved.
Perjury Accusation Led To NYPD Interrogation
Scheindlin said that on February 12, 2008, the sergeant was questioned by lieutenants from the NYPD Internal Affairs Bureau. The sergeant was given time to review a transcript of his 2005 deposition, and then was questioned for approximately four hours about the testimony he gave in the FLSA case.
According to the Court, the police officials questioned the sergeant about some of his answers, posed hypothetical questions and occasionally commented on his responses. The sergeant, who was represented during the interrogation by counsel for the Sergeants Benevolent Association, was told that he was being questioned about “apparent violations of NYPD rules and regulations.”
The sergeant also was told that the law firm representing the City in the FLSA litigation was the complainant in the investigation of him, and that the law firm alleged that he committed perjury and made false statements during his deposition.
Court Finds Risk Of Irreparable Harm
On March 5, at the request of the plaintiffs, the Court entered a temporary restraining order enjoining the City and Police Department from taking further action against the sergeant or any other plaintiff.
The Association argued that the Court should enter a preliminary injunction to restrain investigations and disciplinary action, and Scheindlin agreed.
To obtain a preliminary injunction, the Court said, plaintiffs were ordinarily required to demonstrate “(1) the possibility of irreparable harm; and (2) either (a) a likelihood of success on the merits, or (b) a sufficiently serious question going to the merits combined with a balance of hardships tipping decidedly in favor of the moving party.”
The FLSA bars retaliation against an employee who has instituted or participated in a proceeding under the Act, the Court noted, and concluded that the NYPD interrogation of the sergeant created a risk of irreparable harm.
The City argued that the sergeant had not been charged or found guilty of any offense, and had an adequate remedy under state law if his employer took disciplinary action against him, but Scheindlin rejected the argument.
Noting that an internal affairs investigation required the sergeant to answer the questions posed to him or face discipline or dismissal, Scheindlin dismissed the City’s argument that no plaintiffs had withdrawn from the Mullins lawsuit as a result of the sergeant’s interrogation: “No plaintiffs have dropped out of the case yet, but I have no doubt that some plaintiffs – particularly the test plaintiffs who have been deposed – may choose to do so should plaintiffs’ instant motion be denied.”
Finding that the plaintiffs had established a threat of irreparable harm from questioning employees about their testimony in the FLSA case, Scheindlin added that “[f]ailing to enjoin the instant proceeding against the sergeant or similar proceedings against any of the plaintiffs would allow defendants to compel additional testimony on the very topics at issue in this pending litigation, but outside of the bounds of the judicial process and on defendants’ terms.”
Investigations Based on FLSA Testimony ‘Inappropriate’
Scheindlin said she was also satisfied that the plaintiffs had presented a “strong prima facie case of retaliation in violation of the FLSA.”
The Court said that the timing of the Department’s action undermined its claim that investigating the claims against the sergeant or other employees was “time-sensitive and significant enough to warrant investigations during the pendency of this action.” Delaying an investigation of the sergeant for more than two years after his deposition supported a claim of retaliation, she said.
“Tellingly,” the Court observed, “in the interim period, discovery with respect to the first group of test plaintiffs closed and the Court issued the November 6th Order, both events possibly spurring defendants to seek, albeit inappropriately, additional discovery outside the context of the lawsuit.”
Finally, Scheindlin said that accusing an employee of perjury during a deposition “strikes the Court as inappropriate” because of the nature of the FLSA claims. The issue in the depositions was whether the primary duty of the sergeants was management, she noted.
“As a result,” Scheindlin wrote, “plaintiffs’ deposition testimony regarding their duties, responsibilities, and authority as sergeants should not be the basis for perjury charges when the whole point of the lawsuit is to determine what those responsibilities are.”
The Court acknowledged that the NYPD “has an obligation to investigate acts that violate its internal regulations as well as the law,” but she concluded that “I am not convinced that the investigation into the sergeant’s alleged perjury, or that of any other plaintiff in this action, presents a pressing circumstance that must be addressed during the pendency of the litigation.”
Court Issues Injunction Covering All Plaintiffs
Granting plaintiffs’ request for a preliminary injunction, Scheindlin ordered the City of New York and the Police Department to refrain from any further investigation of the sergeant’s testimony or participation in the FLSA lawsuit. She enjoined the defendants from pursuing any disciplinary action against the sergeant based on the February interrogation.
The Court also enjoined the defendants from “investigating or disciplining any plaintiff in this matter based on his or her testimony or participation in this lawsuit.”
This article appears in the May 2008 issue