Civil Service Commission Reverses Retaliatory Demotion:
On January 30 2009, the Civil Service Commission voted unanimously to reinstate the former rank and seniority to a police sergeant after being demoted in April 2003. The Commission held six days of hearings with eight witnesses and then concluded that the Town lacked just cause to demote officer. In July 2008, the Division of Labor Relations separately found that the Town did not have cause to demote the same officer because of his activities as a union official. Attorneys Douglas Louison and Robert Stewart pursed the Town at the Civil Service Commission and obtained vindication for the sergeant. (BayState Legal Defense Service Newsletter, Volume I-3)
Arbitration Award- Overturned Termination:
LCCP has been successful in overturning the termination of a DOC employee by arguing that the employee's First Amendment rights were violated. The Correctional Officer posed a message on an on-line bulletin board at voy.com in which he indicated his disgust with the state of contract negotiations between MCOFU and the DOC. His messages criticized suggestion of a legal strike by advocating aggressive bargaining in an effort to reach a new contract, and poked fun at the DOC's negotiation tactics. The DOC argued that the Officer's posting posed a threat to the institution. While the Arbitrator did find that the Officer's use of language was graphic and inappropriate in the context of a correctional institution, the Arbitrator did not find that the Officer was advocating violence or threatening actual violence. In addition, the Arbitrator found that two similar situations where employees had been disciplined for posting threatening language resulted in ten day and sixty day suspensions, respectively. The fact that the Officer had been terminated was disparate and, therefore, the Arbitrator reduced the Officer's suspension from termination to a sixty day suspension. In doing so, the Arbitrator determined that the DOC had violated Article 23.1 of the CBA and ordered the Officer returned to his position without loss of seniority and with back pay equal to the amount of pay he would have earned from the date of his termination to the date of his reinstatement, minus the sixty day suspension. (BayState Legal Defense Service Newsletter, Volume I-3)
Use of Force Appropriate:
In November 2008, the DOC Commissioner found that a sergeant at MCI-Cedar Junction did not use excessive force in responding to a violent attack by an inmate. The finding was a result of a commissioner's hearing where the sergeant was able to show that did not make contact with the inmate by using the DOC's video surveillance. (BayState Legal Defense Service Newsletter, Volume I-3)
Federal Jury Finds in Favor of Officers in Excessive Force Trial:
LCCP won a jury verdict in the United States District Court on behalf of three Officers accused of excessive force. The plaintiff claimed that he was beaten and falsely arrested in February, 2003 by three Officers who were working a detail at a local nightclub. Plaintiff claimed that he was denied entrance to the club by a doorman, and when engaging in a conversation with the doorman as to why he was denied entrance, was attacked by one of the Officers who threw him to the ground, dragging him across the sidewalk and pushed him up against a car and along with the assistance of the other officers, arrested him. The criminal charges for trespassing, disorderly person and disorderly conduct against the individual were dismissed, and the plaintiff filed suit pursuant to 42 USC, Section 1983 (civil rights statute) for false arrest and excessive force.
Plaintiff testified for the first time at trial that he suffered physical injury in the nature of a scar below his right eye- even though in his answers to interrogatories he admitted to no physical injuries. He claimed emotional distress but had not seen any healthcare provider or counselor after his arrest and alleged beating.
Our defense offered an affidavit signed by the plaintiff just six weeks after his arrest in which he described the incident very differently than he did during his testimony on direct examination.
The trial had been bifurcated, with the first phase of the trial against the three defendant Officers, and a second phase scheduled against the municipality should there be a jury finding against the defendants in phase one. A jury deliberated for approximately 90 minutes before returning a verdict in favor of all defendants. (BayState Legal Defense Service Newsletter, Volume I-2)
State and Federal False Arrest Claims Dismissed Against Officer:
LCCP was successful in getting a claim dismissed against an Officer who had been accused of falsifying a search warrant and making a false arrest. The case involved a claim made by three family members that an Officer had wrongfully procured a search warrant from the District Court Clerk for a search of the family's home. One of the family members was suspected of selling illegal narcotics from the home. When the Officer and five other Officers entered the family's home, they arrested another family member when they found a cache of drugs in her bedroom.
The plaintiffs asserted that the Officer had provided false information in his affidavit in support of the issuance of the search warrant. Originally, plaintiffs sought to file a criminal complaint against the Officer but that was dismissed after a four hour hearing at the District Court. The plaintiffs then filed a civil action to State Court, which the LCCP lawyer removed to the Federal Court. The case was dismissed in favor of the defendant Officer at the federal proceedings and then remanded to State Court for civil rights violations based upon false arrest. In addition to the false arrest claim, the plaintiffs had claims for defamation for statements made by the Officer while testifying in the District Court, invasion of privacy and emotional distress, as well as state civil rights claims.
After the BLDS attorney filed motions to dismiss the claims on behalf of the Officer, the Court determined that the Officer had indeed procured a valid search warrant, that he and the other officers had properly entered the family home, and none of the actions of the Officer amounted to an actionable tort. Accordingly, the entire matter was dismissed and this lengthy civil proceeding- which originated in 1996- finally met its end in 2008. (BayState Legal Defense Service Newsletter, Volume I-2)
Federal Court Dismissal of False Arrest Claims: Civil Commitment:
A former Town employee brought claims against the defendants, several police employees and their Town, including counts asserting false arrest, kidnapping, due process violations and assault and battery. A Motion to Dismiss was filed on behalf of the defendants arguing that they were immune from liability in applying for an Application for Civil Commitment under state law. The Court dismissed the plaintiff's complaint in its entirety. (BayState Legal Defense Service Newsletter, Volume I-2)
District Court Criminal Trial Win:
A BLDS member was charged with criminal assault and being a disorderly person by a person who held a personal grudge against him. On October 27, 2008, BLDS brought two supporting witnesses with the BLDS member to Ayer District Court for trial. After hearing the BLDS member's story and the other evidence presented, the jury returned a not guilty verdict. (BayState Legal Defense Service Newsletter, Volume I-2)
Civil Service Commission Overturns Suspension:
The Civil Service Commission voted not to adopt the recommended decision of a DALA (Division of Administrative Law Appeals) Magistrate. The Commission found that due to the course of events, including having the female employee's desk moved into the men's locker room, among other things, that sufficient animus existed on the part of the supervisor against the employee, and against this background, neither the supervisor nor the Appointing Authority displayed an "unprejudiced mind, exercised common sense, or followed the rule of the law" in its treatment of the Appellant/ employee in regard to the suspension without pay the employee received, and granted her appeal. (BayState Legal Defense Service Newsletter, Volume I-2)
Arbitration Award- Reinstating Promotion:
LCCP recently won an arbitration award on behalf of a state officer who was wrongfully denied his promotion after sustaining a job related injury. The Officer had been promoted to sergeant. However, the officer was injured on-duty prior to his starting work in the new position. The Department rescinded the promotion. The Union grieved this rescission and the matter went to arbitration.
The Arbitrator found that the Department violated the CBA when it rescinded the Officer's promotion and the Department was ordered to reinstate him and to be made whole for lost wages and benefits. The Arbitrator found that the Officer had a physical handicap within the meaning of the CBA and essentially the Department discriminated against him.
In summary, in June, 2005, the Officer passed the Civil Service examination making him eligible for promotion to sergeant. Thereafter, he suffered an on the job injury. While he was on IA leave, he was certified eligible for promotion. He was placed on the list. He was never bypassed by the Department and in December, 2006 recommended for promotion. In January, 2007, the Officer received a letter notifying him that his promotion was approved.
The promotion letter indicated that in order to be promoted, the Officer had to be actually employed in the position to which he is promoted within 30 days from the notice of the promotion. The letter said that if he did not return from his injury, this promotion would be rescinded.
The Officer did report for duty. He was told that his medical restrictions were not acceptable to the Department. The Officer was not offered an opportunity to participate in a temporary modified work position. A week later, his promotion was rescinded due to his failure to report to duty. He had in fact reported to work precisely as instructed but was denied the right to assume the duties of his new position.
Although the Department argued that this was a bypass case, the Arbitrator specifically stated that the Department did not bypass him; it promoted him and then rescinded the promotion. The Officer was certified and promoted. He was entitled to the protection of Article VI prohibiting against discrimination based on physical incapacity. The Arbitrator said the Department engaged in handicap discrimination and must reinstate him to the position retroactively. (BayState Legal Defense Service Newsletter, Volume I-2)
Arbitration Award- Family Leave Act:
An Arbitrator found that a Department wrongfully denied an employee's request for FMLA leave to care for his ill wife. The Arbitrator found that the employee submitted sufficient medical records to support the valid request. See article below, Reduced Reporting Requirements When Applying for FMLA Leave to Care For a Spouse That Has A Serious Health Condition. (BayState Legal Defense Service Newsletter, Volume I-2)
Departmental Appeals: Reduction of Suspension:
The Appellant was disciplined for allegedly "faili[ing] conduct [him]self in a professional manner when [he] placed [his] finger in a female inmate's face then placed [his] hand upon the female inmate's back in an attempt to direct her from the clinic area" at MCI Framingham and received a three day suspension. After the Step II hearing, the suspension was reduced from three days to one day. (BayState Legal Defense Service Newsletter, Volume I-2)
Enhanced Video Evidence Exonerates Officer:
After a DOC inmate surprised and attacked a Corrections Officer, the Officers in the unit responded to restrain the inmate and clear the area. During a routine review of the video surveillance, the DOC investigators saw what appeared to be a BLDS member kicking the restrained inmate as he walked by his head. After a two day Commissioner's hearing in which the investigator introduced the surveillance video as well as an enhanced version of the video, the Commissioner did not sustain the charges of using excessive force against the inmate. (BayState Legal Defense Service Newsletter, Volume I-2)
Reinstatement at Arbitration
In 2005, a 17 year veteran Officer was terminated. The Officer was wrongfully accused of accessing confidential departmental computer files. He was reinstated after a successful arbitration in 2007 where the termination was reduced to a two week suspension. The officer was reinstated with back pay. (BayState Legal Defense Service Newsletter, Volume I-1)
Reinstatements at Civil Service
An Officer was terminated by his municipality for violations of MGL ch. 209A restraining orders and domestic violence. Said officer was reinstated in 2007 after successful negotiations at the Civil Service Commission.
Two Officers terminated for excessive force on a prisoner had their discipline overturned by the CSC and were reinstated with back pay. The Department has appealed to the Superior Court. The Superior Court has ordered a new hearing held with all defense being handled through BLDS. (BayState Legal Defense Service Newsletter, Volume I-1)
Suspension Overturned at Civil Service
A 20 day suspension for allegedly not reporting the name of an officer who stepped on an inmate during a scuffle was overturned by the Commission. (BayState Legal Defense Service Newsletter, Volume I-1)
