Employment Law Daily Police officer’s reports of racial profiling by another officer raise matter of public concern
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Thursday, March 3, 2016

Police officer’s reports of racial profiling by another officer raise matter of public concern

By Joy P. Waltemath, J.D. First Amendment retaliation claims of a police officer who reported a co-officer’s racial profiling and mistreatment of three young black teenagers during a traffic stop, as well as alleged retaliation following the filing of this lawsuit, survived in part a motion to dismiss filed by a town and individual defendants, a federal district court in Connecticut ruled, finding his speech involved a matter of public concern. Although the officer’s equal protection claims were dismissed, his intentional infliction of emotional distress claim against the co-officer, who told the plaintiff that his wife was sleeping with a police captain and waived a gun in the plaintiff‘s face, telling him he did not care about his safety on duty, also survived (Cecchini v. Schenck, February 29, 2016, Shea, M.). The litigation involved multiple claims against multiple defendants, not all of which survived, but its genesis was in the 15-year officer and former union president’s report that he saw a co-officer stop a car with three young black teenagers, grab the genitals of one of them, and threaten them that a police dog would attack them if they did not produce marijuana, for which the officers then unsuccessfully searched. After he reported this to a supervisor, his co-officer falsified information in the computer dispatch and report system. No one took any action, although later a lieutenant confronted the plaintiff about whether he had told the NAACP about the co-officer’s alleged misconduct. Although the officer escalated his complaints to the town manager and its HR department, they allegedly did nothing. Allegations. He claimed he suffered continuing harassment and intimidation, including being the only officer not issued a bullet-proof vest; denial of several promotions under suspicious circumstances that deviated from policy; untimely and inaccurate performance appraisals; that his grievances were not processed; having trumped-up disciplinary charges brought against him for minor infractions (for which he was suspended); and being bullied by the co-officer who removed the plaintiff’s gun from his locker, angrily waved his own gun in the plaintiff’s face, told the plaintiff that his wife was having an affair with a police captain, and said he did not care if the plaintiff got hurt on duty. After he filed suit, he alleged he was subjected to even more retaliation, including from another lieutenant who allegedly used his supervisory position while on duty to coerce other officers to sign a petition to suspend a union election in which the plaintiff was running, even though officers are not allowed to conduct union business on the job. First Amendment retaliation. Drawing all reasonable inferences in the officer’s favor, the court found he had plausibly alleged the personal involvement of the town manager in the retaliation—that the town manager ignored his grievances and complaints about retaliatory conduct and police misconduct, though he had the authority to prevent retaliation from occurring but did not do so. Thus, the motion to dismiss the First Amendment retaliation complaint as against the town manager in his individual capacity was denied, and that claim would proceed against the town and several supervisory individuals, as well as the co-officer, in their individual capacities—claims the defendants did not attempt to dismiss. Emotional distress. Although the officer alleged intentional infliction of emotional distress against all of the individual defendants (he dropped his tort claim against the municipality), only his claim against his co-officer survived. His complaints about untimely and inaccurate performance evaluations, denial of promotions, and unprocessed grievances were not examples of extreme and outrageous conduct, nor were his claims that a supervisor falsely stated that he had lied. But his claim that the co-officer told him his wife was sleeping with a police captain—at roll-call in the presence of numerous employees—that he angrily waived a gun in the plaintiff‘s face, and that he told the plaintiff that he did not care about his safety on duty went beyond merely insulting or impolite conduct. Allegations against the lieutenant who cursed at him, told him he didn’t care about his safety, and told him he could “shove his f**king evaluation down his throat” were rude and insulting, as was his making a false finding that the plaintiff lied in an investigation. But they were not sufficient to sustain an IIED claim against the lieutenant. Post-lawsuit First Amendment retaliation. The complaint against all defendants also alleged a First Amendment retaliation claim concerning events that occurred after the officer filed this lawsuit (which the court analyzed under the Petition Clause, which uses the same test as for claims under the Speech Clause in the context of public employee suits). Here, the defendants claimed the lawsuit itself was not protected by the First Amendment because it was merely related to personal grievances, and it is true that a lawsuit is not a matter of public concern merely because it raises a First Amendment claim. Racial profiling was public concern. But finding it was a matter of public concern, the court pointed out the complaint alleged, among other things, “that a police officer reported police misconduct that he witnessed while on duty, testified in a disciplinary hearing about internal police department policies, was subsequently denied promotions and timely evaluations, was subjected to internal investigations, and was otherwise treated poorly by his coworkers.” Suggesting that exposure of official misconduct, especially within a police department, is “of great consequence to the public,” the court emphasized that the allegations involved retaliation following the plaintiff’s report of racial profiling and were clearly a matter of public concern. Acting under color of state law. The court also refused to dismiss the post-litigation retaliation claim against another police lieutenant, who allegedly used his authority as a supervisor to force on-duty police officers to sign a petition against the plaintiff related to his attempt to regain reelection to a union office. That lieutenant allegedly exercised power possessed solely by virtue of state law by using his rank as lieutenant to force on-duty officers to sign a petition, even though officers were not permitted to conduct union business while working. Accordingly, the officer plausibly alleged that the lieutenant was able to require the on-duty officers to sign a petition only because of his position, which was enough to allege he was acting under color of law.

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