NYPD Prohibited From Conducting IA Investigation Into Sergeants’ FLSA Testimony

A group of approximately 4300 current and former New York City police sergeants sued the City of New York claiming systematic violations of their overtime rights under the Fair Labor Standards Act. Because of the sheer volume of plaintiffs, the City and the Plaintiffs agreed in May of 2005 to limit depositions to “test plaintiffs” – individuals from 17 job categories, who would be organized into three groups.

In January 2006, NYPD’s outside counsel, Seyfarth Shaw, met with Charles Campisi, Chief of NYPD’s Internal Affairs Bureau, as well as other high level IAB officials and NYPD lawyers regarding the “topic of deposition testimony.” Seyfarth Shaw sent transcripts from depositions of the first group of test plaintiffs to NYPD. The next day, the NYPD ordered lieutenants from IAB to collect command logs, memo books, activity reports, overtime slips, and requests for leave reports from all of the test plaintiffs as well as individuals who worked with them. The pool of plaintiffs from whom documents were collected included both those who had been deposed and those who had not.

The lawyers for the plaintiffs immediately objected to the use of IAB to collect documents on the ground that certain plaintiffs understood IAB’s involvement to mean they were under investigation. Sergeant Paul Capotosto, the Secretary of the Sergeants Benevolent Association, described the document collection process as a “raid,” and chronicled at least a dozen phone calls he received from worried plaintiffs, who expressed concern to him that the NYPD was retaliating against them for their participation in the lawsuit.

In March 2006, shortly after the document collection, IAB sent an Integrity Control Officer to attend the deposition of Sergeant Edward Scott. As of his deposition date, Sergeant Scott, who was a plaintiff in the lawsuit against the City and NYPD, had given no testimony in connection with the action. Integrity Control Officers do not normally attend depositions, and Sergeant Scott testified that he was “surprised and concerned” by the officer’s presence. He also testified that he found the officer’s presence to be “intimidating.” When Sergeant Scott’s retirement was administratively deferred pending resolution of an unspecified “disciplinary matter” some months later, it came to light that he was under investigation for testimony he had given during his deposition. Sergeant Scott stated that, at the time, “I believed that if I withdrew from this FLSA lawsuit, the City would close its investigation into my deposition testimony.”

In February 2008, the NYPD ordered Sergeant Anthony Cioffi, a member of the first group of test plaintiffs, to submit to a “GO-15” interview at Campisi’s office. A GO-15 is an interview in connection with allegations of serious misconduct or corruption. As a preamble to the GO-15, an IAB lieutenant identified the “official Department investigation” as “Criminal Case Number 06975,” and noted that the “complainant” was “the law firm of Seyfarth Shaw.”

When the plaintiffs complained to the trial court, it issued a preliminary injunction prohibiting NYPD from continuing the use of IAB to investigate the testimony in the FLSA lawsuit. The City appealed the injunction to the federal Second Circuit Court of Appeals.

The Appeals Court upheld the injunction. The Court found that “no party disputes that the filing of a FLSA lawsuit for overtime is a ‘protected activity.’ There is likewise little doubt the evidence considered by the district court was sufficient to support the Court’s finding that the NYPD’s actions in response to receipt of transcripts of deposition testimony disadvantaged the plaintiffs. An IAB investigation carries with it a possibility of termination. In addition, the NYPD indefinitely postponed Officer Scott’s retirement pending resolution of the inquiry into his deposition testimony. Further, all IAB allegations appear as part of the ordinary course in an officer’s Central Personnel Index – regardless of whether the officer is later exonerated. These notations affect an officer’s level of discipline for future infractions and can complicate an officer’s request for transfers or promotions.

“Regarding the causal connection between the NYPD’s actions and the plaintiffs’ 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.

“Moreover, it is clear that the preliminary injunction has minimized the harm to the plaintiffs and continues to be necessary to protect the sergeants so long as the legal proceedings are ongoing. The plaintiffs submitted evidence to the district court that numerous plaintiffs were extremely concerned about testifying just before the commencement of the trial relating to the first group of test plaintiffs. Only after plaintiffs’ attorneys explained that the preliminary injunction protected plaintiffs from retaliatory investigations did those sergeants decide to continue with the lawsuit. Thus, as the district court concluded, the March 21 injunction countered the witness intimidation that resulted from the pattern of IAB investigations, and the evidence plainly showed that numerous plaintiffs would likely abandon this suit rather than testify in the event that the district court were to lift the preliminary injunction.”

Mullins v. City of New York, 626 F.3d 47 (2d Cir. 2010).

This article appears in the March 2011 issue.