Know Your Rights
No Relief for False Charges

By JAMES A. BROWN

I have represented union members at arbitration for more than 20 years as well as employees in Civil Service Law Section 75 proceedings at the city's Office of Administrative Trials and Hearings ("OATH"). When reinstatement with full back-pay is ordered, or there is an acquittal, the grievant (or respondent) will often inquire: "Is there a lawsuit I can file?"

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.

Of course, not all victories in disciplinary proceedings are an indication that an employee was "wronged." A disciplinary proceeding may be dismissed because an employer simply cannot prove its case for various reasons, including the unavailability of its witnesses to testify. Yet when a disciplinary case is dismissed and was infused with false accusations, is there some legal action to be taken against the accuser? A recent Second Circuit Court of Appeals decision, Rolon v. Henneman, underscores that there is no claim against the accuser and that reinstatement, back-pay and expungement of the disciplinary charges from the employee's personnel file may be the only available remedies.

Disciplinary Charges

The plaintiff in Rolon was a Town of Walkill police officer who was served with disciplinary charges alleging misconduct occurring over the course of 10 weeks. Some of the alleged infractions were witnessed by the Acting Chief of Police; other infractions were only reported to the Chief by a fellow officer. The disciplinary charges resulted in the plaintiff being suspended without pay.

A labor arbitrator found that neither the Police Chief nor the fellow officer offered truthful or credible testimony at arbitration. The arbitrator also concluded that the Police Chief's personal hostility toward the police officer was the underlying motivation for many of the disciplinary charges. Ultimately, the arbitrator issued a two-day suspension and otherwise ordered reinstatement with back-pay.

Plaintiff then filed a lawsuit in Federal court alleging, in part, that both the Police Chief and plaintiff's fellow officer, by "bearing false witness" against him, denied him due process causing him anguish and injury. Plaintiff also alleged that the fellow officer lied about him when reporting the alleged misconduct to the Chief.

Absolute Immunity

The district court dismissed plaintiff's complaint and, on appeal, the Second Circuit affirmed. In a decision of first impression, the appeals court found that "absolute immunity" not only applies to witnesses in court proceedings but also to testimony given in arbitration proceedings. In other words, there is no claim for civil liability against a person based on his or her false testimony at arbitration.

As for the fellow officer who reported some of the alleged misconduct, plaintiff offered a legal theory which was framed as two claims: "malicious prosecution" and "fabrication of evidence." The Second Circuit rejected both claims.

According to the Second Circuit, malicious prosecution is not found where there is no imprisonment or detention of the plaintiff and he is not the subject of a criminal prosecution. As for fabrication of evidence, the claim could only survive, under Federal law, if there was some "deprivation of a liberty" interest within the meaning of the United States Constitution. The court found no such deprivation of liberty interest related to plaintiff's claim of false disciplinary charges and public humiliation.

Not Even Defamation

The Second Circuit left the door open to the fabrication of evidence claim being brought as a defamation action under state law. Yet at least two state appellate courts have held that statements made during, or for, a judicial or administrative hearing also enjoy absolute immunity. Thus, an employee is shielded from liability with regard to all statements (including false accusations) made "in preparation for" a disciplinary hearing.

In addition, a Federal court, in 1998, explained that no defamation claim exists based on testimony in grievance procedures because the potential for civil liability would "tend to inhibit the offer of honest statements in arbitration proceedings" and would thus jeopardize the arbitration process.

In sum, if your disciplinary charges are dismissed at arbitration (or if you are acquitted in an OATH proceeding), and there is evidence of false accusations, you may have to adjust your expectations regarding the relief available to you. A civil lawsuit against your accusers, for statements made at your disciplinary hearing or in anticipation of the hearing, is not an option.