Transfer Of Detective Sergeant To Patrol Held Retaliatory

Sergeant Kerry Jernigan works for the Homicide Section of the Prince George’s County, Maryland Police Department. Jernigan worked 16 years as an investigator; he was occasionally assigned to temporary duty with various task forces. Upon his promotion to sergeant, Jernigan remained in the Homicide Section. Major Cesar Pacheco was the commander of the Section.

Jernigan estimated that he had been assigned to approximately 1,000 cases in one capacity or another, including 100 cases as primary investigator. Jernigan has frequently been assigned to train other investigators within the Department, with particular emphasis on interviewing and interrogation techniques. For at least the last five years, Jernigan had received the highest possible rating on his annual performance appraisals.

Jernigan also served as a Fraternal Order of Police (FOP) shop steward for approximately two years, from about 1995 to 1997 or so. As of the date of his transfer on March 23, 2014, he was eligible for retirement from the Department, as he had over 24 years of service and was over the age of 41. Jernigan testified, however, that he did not plan to retire for some time. There was no dispute that continuing to remain employed was beneficial to Jernigan from the vantage point of maximizing the value of his retirement benefits.

A dispute in the Department arose late in 2013 when the County decided to stop paying Homicide investigators standby pay. Pacheco and Jernigan had a number of discussions about how to handle on-call situations, with Jernigan speaking at times on behalf of all members of the Section. Matters eventually came to a head at a meeting between Pacheco and all members of the Section about standby and overtime issues. Jernigan made a number of statements on behalf of members, and was characterized by Pacheco as “very vocal.” A representative of the Fraternal Order of Police, present in the room, disagreed with that characterization and described Jernigan as polite.

Very quickly, the County transferred Jernigan to a patrol assignment. The FOP responded by filing an unfair labor practice complaint, alleging that the transfer was in retaliation for Jernigan’s concerted activity of speaking out on behalf of the Section’s employees.

The Prince George’s County Labor Relations Board found that the transfer was in fact retaliatory, and ordered that Jernigan be returned to his former assignment and be made whole for lost compensation. The Board first concluded that the fact that “the record failed to contain first hand, direct evidence of unlawful intent in connection with the transfer of Jernigan is not critical to the Complaint. The record revealed that the timing for the transfer decision followed closely on the heels of the February 21st meeting. There was no persuasive evidence that the transfer of Jernigan (or anyone else) from the Homicide Section was being seriously considered prior to the February 21st meeting.

“Focusing upon the explanations provided by Maj. Pacheco for the transfer, the record revealed multiple explanations for the decision to transfer Jernigan from the Homicide Section, none of which were shown to be factually true. One explanation was that the decision to transfer Jernigan from Homicide was part of an overall restructuring of the Homicide Section to ultimately reduce the number of squads by one and to reassign personnel to fully staff the remaining squads. Maj. Pacheco claimed to have been discussing this possibility with Deputy Chief Velez in mid to late 2013, but no evidence was introduced that this potential action was ever made the subject of any report or analysis or memorandum, no evidence was introduced that this potential restructuring was ever discussed with others, and no action whatsoever was undertaken in furtherance of this claimed restructuring plan or even to establish that such a plan had been approved.

“It should be noted that the first – and only – item that was purported to be in furtherance of this claimed restructuring plan is the transfer of Jernigan. Moreover, coincident with his transfer out of the Homicide Section, there was a transfer in of a replacement sergeant. Thus, the net effect of those two transfers was that there was no change in the level of staffing within the Homicide Section overall and no change in the number of sergeants within the Homicide Section. Stated differently, the transfer of Jernigan cannot be understood as a first step in a restructuring of the Homicide Section to reduce by one the number of squads since there was no net reduction in the number of sergeants that resulted from Jernigan’s transfer out of the Homicide Section. Viewed in total, this claimed rationale for the transfer of Jernigan was not shown to be a rationale for the transfer and is deemed to be little more than a pretextual reason for the transfer.”

Fraternal Order of Police, Prince George’s County Public Employee Relations Board (2014).