The Second Circuit recently affirmed an order enjoining the NYPD from investigating and harassing cops who had testified at depositions as part of their FLSA overtime lawsuit. The case is called Mullins v. City of New York and can be found at 626 F.3d 47.
Among the most disturbing facts were that the officers were questioned only days after their superiors obtained the transcripts of their depositions and asked questions about their testimony:
“… Sergeant Cioffi was informed that his failure to answer the department’s questions would “subject [him] to department charges, which would result in [his] dismissal from the Police Department.” During the course of the GO-15, which was purported to be limited to “questions specifically directed and narrowly related to the performance of [Cioffi’s] duties,” Sergeant Cioffi was questioned for four hours about specific responses he gave at his deposition and was asked to account for certain inconsistencies in his testimony. Many of the questions were phrased as accusations of wrongdoing. For example, he was asked, “Sergeant, one area I want to know is I feel in your testimony for a fact you minimize your supervisory responsibilities. Can you explain to me why you would do that?” Sergeant Cioffi explained that any differences between his November 15, 2005 testimony and his February 12, 2008 responses at the GO-15 interview could be attributed to the “duress” he felt during his November 2005 deposition, which he attributed to opposing counsel’s “abrasiveness.” The district court would later aptly observe that “[t]he transcript of the interrogation reveal[ed] lieutenants seeking concessions and modifications of testimony, rather than an investigation of a willful assertion of a material fact known to be false.” Mullins v. City of New York, 634 F.Supp.2d 373, 389 (S.D.N.Y.2009).”
The district court enjoined the investigation and the Second Circuit affirmed, holding that their likelihood of success on an FLSA retaliation claim was high and that there would be “irreparable harm” if an injuction was not issued:
“Moreover, it is clear that the preliminary injunction has minimized the harm to Appellees and continues to be necessary to protect the sergeants so long as the legal proceedings are ongoing. Appellees 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, 634 F.Supp.2d at 393.”
The takeaway is that overtime plaintiffs should not be investigated by their employers after giving testimony. Anyone considering joining an FLSA case in the Second Circuit should take comfort in this ruling that the federal courts will act to prevent harassment and retaliation.