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Edward D. Mullins, et al v. City of New York and

November 16, 2010

EDWARD D. MULLINS, ET AL., PLAINTIFF-APPELLEES,
v.
CITY OF NEW YORK AND THE NEW YORK CITY POLICE DEPARTMENT, DEFENDANT-APPELLANTS.



Appeal from an order of the United States District Court for the Southern District of New York (Scheindlin, J.) entered on March 21, 2008, and amended on April 10, 2008, preliminarily enjoining the City of New York and the New York City Police Department from investigating and disciplining Plaintiff-Appellees based upon Plaintiff-Appellees' testimony or participation in this lawsuit.

The opinion of the court was delivered by: Pooler, Circuit Judge:

08-1839-cv

Mullins v. City of New York

(Argued: September 22, 2010

Before: POOLER, KATZMANN, and HALL, Circuit Judges.

We conclude that hearsay testimony is admissible to support the issuance of a preliminary injunction, and the district court did not abuse its discretion in granting preliminary injunctive relief to Plaintiff-Appellees based in part on such evidence.

Affirmed.

New York City and the New York City Police Department appeal from an order of United States District Court for the Southern District of New York (Scheindlin, J.) entered on March 21, 2008, and amended on April 10, 2008, preliminarily enjoining them from investigating and disciplining Plaintiff-Appellees based upon Plaintiff-Appellees' testimony or participation in this lawsuit. We conclude that hearsay testimony is admissible to support the issuance of a preliminary injunction, and the district court did not abuse its discretion in granting preliminary injunctive relief to Plaintiff-Appellees based in part on such evidence.

BACKGROUND

Plaintiff-Appellees are approximately 4300 current and former New York City police sergeants who filed suit against the City of New York (the "City") and the New York City Police Department ("NYPD") on April 19, 2004, claiming systematic violations of their overtime rights under the Fair Labor Standards Act of 1938 ("FLSA"). Because of the sheer volume of plaintiffs, the parties agreed in May of 2005 to limit depositions to "test plaintiffs"--individuals from seventeen job categories, who would be organized into three groups. The record reflects that, at some point in January 2006, NYPD's outside counsel, Seyfarth Shaw LLP, met with Charles Campisi, Chief of the "Internal Affairs Bureau" ("IAB"), as well as other high level IAB officials and NYPD lawyers regarding the "topic of deposition testimony." On January 19, 2006, Seyfarth Shaw sent transcripts from depositions of the first group of test plaintiffs to Appellants. 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. Some of the IAB document collectors were plaintiffs in this lawsuit--they were promoted to lieutenants after the action was filed. The pool of plaintiffs from whom documents were collected included both those who had been deposed and those who had not.

Counsel for the test 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, Citywide Secretary of the Sergeants Benevolent Association, described the document collection process as a "raid." During his testimony at the preliminary injunction hearing, Sergeant Capotosto 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. Among these callers was IAB Lieutenant Ed Heim, a plaintiff in this action, who described being "forced" to collect documents from other plaintiffs and communicated his apprehension to Sergeant Capotosto about the NYPD's approach. Another sergeant referred to IAB's actions as "goon tactics."

Testimony at the preliminary injunction hearing about the unusual nature of the process used to collect documents confirmed that plaintiffs' concerns were not unfounded. Sergeant Anthony Lisi of the Emergency Services Unit of the NYPD testified that document collection is typically conducted by Administrative Lieutenants or Integrity Control Officers assigned to a particular command. In addition, Sergeant Brian Coughlan, Sergeant Supervisor of Detectives in the Bomb Squad, testified that IAB is involved in most cases only when an officer is being arrested or removed from his post.

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. Sergeant Scott, who testified by affidavit at the preliminary injunction hearing, explained that Integrity Control Officers do not normally attend depositions, and he was, therefore, "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." When discovery concluded with respect to the first group of test plaintiffs, these plaintiffs moved for summary judgment on their claims. On November 6, 2007, the district court granted partial judgment in favor of the City and NYPD. See Mullins v. City of New York, 523 F. Supp. 2d 339 (S.D.N.Y. 2007). Specifically, the district court held that under Department of Labor rules in effect before August 23, 2004, certain sergeants were "bona fide executives" under FLSA, and were therefore exempt from overtime. Id. at 359. The court also identified material questions of fact concerning whether certain sergeants were exempt from overtime after the August 2004 change in Department of Labor regulations, and ordered a trial to resolve this question. Id. at 360-61.

Three months later, 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 the office of Charles Campisi, Chief of IAB. 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 LLP." Sergeant Cioffi was informed that the interview was part of an investigation into his alleged violations of NYPD regulations relating to testimony given during his deposition; there were two charges--perjury and false statements. Sergeant Capotosto, who attended Sergeant Cioffi's GO-15 in his capacity as a representative of the Sergeants Benevolent Association, testified that Chief Campisi himself was at the interview when he arrived. Sergeant Capotosto also testified that it was unusual for a GO-15 to take place at Chief Campisi's office; in fact, in the hundreds of GO-15s with which he had been involved, Sergeant Capotosto could not recall a single interview that took place at the Chief's office. At the beginning of the GO-15, 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 ...


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