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Legal Report September 2010


SECURITY OFFICERS. A New Jersey prosecutor has dismissed a felony assault charge against a security guard. The guard was indicted after a scuffle at his workplace resulted in an injury to a thief who had come to rob the facility.

Alfred Boyd worked as a security guard and was assigned to patrol a nine-acre abandoned hospital campus near the center of Newark, New Jersey. The derelict building had no electricity but still contained medical equipment and materials that could be scavenged, such as copper wire. Boyd was hired to work from midnight to 8:00 a.m. to prevent vandalism on the property. He was unarmed and was told to call police in case of emergency. He was trained not to intervene in a robbery.

On August 6, 2008, Boyd and fellow guard Albert Simmons heard sounds coming from the basement of the building. Boyd did not know how many thieves were present. Nor did he know whether they were armed. He called down and notified the trespassers that the police were being called.

However, the police did not arrive. In all, Boyd logged four calls to the police, each one more frantic than the last. Before the police arrived, the two thieves rushed Boyd and his coworker. During the tussle, one thief ran but the other one, Raul Almodovar, continued the physical altercation. Almodovar fell and hit his head.

When the police arrived, Almodovar was taken to the hospital. Almodovar claimed that Boyd had hit him over the head with a baseball bat. Boyd was arrested for aggravated assault, unlawful possession of a weapon, and possession of a weapon with an unlawful purpose. The Essex County (New Jersey) District Attorney offered a plea bargain and sentence of three and a half years in prison. Boyd’s attorney—Eric Breslin, a partner in the Newark office of Duane Morris—rejected the offer.

In preparation for trial, Boyd’s attorneys found the Newark Police Department tapes of the 911 calls made on the night of the incident. The tapes clearly indicated that the guards had followed procedures and, more importantly, had been calling the police for help.

Medical evidence also cast doubt on Almodovar’s story. The thief claimed that he had been hit over the head with a bat. The guards claimed that they had no bat and that the Almodovar fell during the scuffle. Medical records indicated a slight laceration to the scalp but no evidence of the type of head trauma that would be caused by a bat.

Breslin met with the district attorney and presented the 911 tapes and medical evidence. After the meeting, the prosecutor opted to dismiss the case. “A factor in the decision was the fact that the guards so manifestly wanted the police to help,” says Breslin. “They were not getting any help, and they were nervous.”

“The fact that Boyd followed procedure in the end worked in his favor,” noted Breslin. “Had he taken matters into his own hands, it would have been harder.”

INVESTIGATIONS. A federal appeals court has ruled that an employee may not sue her employer for retaliation after the company failed to investigate her original discrimination claim. Failure to investigate in such instances does not constitute an adverse employment action, ruled the court.

Cynthia Fincher was hired by Depository Trust and Clearing Corporation (DTCC) in February 2001. She was hired to work in the company’s international tax department until her position was eliminated in October 2004. Fincher was then assigned to a senior auditor position in DTCC’s financial operations division despite her lack of auditing experience. For the two years she worked in the department, Fincher relied on training courses provided to all auditors, a manual, and help from coworkers. While Fincher was struggling to learn the auditing procedures, two of her coworkers were sent to a training session that she was not asked to attend.

The first performance appraisal that Fincher received, in early 2004, was largely positive. She was rated “fully competent” in every category. However, after a year in the department, Fincher’s appraisal was not so complementary. In her January 2006 appraisal, she received marks of “requires improvement” and “unacceptable” in several categories. In March, Fincher received a written warning about her performance. The warning noted that if Fincher did not immediately improve her performance, she would be subject to disciplinary action, up to and including termination.

A week after the warning, Fincher had lunch with her friend Charles Smith, who was also the senior director of employee relations at DTCC. Fincher told Smith that “black people were set up to fail” in the auditing department, because they were not given the same training opportunities.

Fincher told the court that she considered the conversation to be a formal complaint of racial discrimination. At another lunch a week later, Fincher claims she repeated her complaint to Smith. At trial, Smith testified that Fincher’s remarks were casual and did not constitute a formal complaint.

In June 2006, Fincher resigned, claiming that her departure was due to racial discrimination and the fact that she received inadequate training. Fincher then filed a lawsuit against DTCC, claiming that she was discriminated against because of her race. She also claimed that she was retaliated against when the company failed to investigate her discrimination claim.

DTCC requested summary judgment—a hearing based on the facts of a case without a trial. The company claimed that the poor evaluations were due to Fincher’s performance and not to her race. The U.S. District Court for the Southern District of New York granted the summary judgment. Fincher appealed.

The U.S. Court of Appeals for the Second Circuit upheld the lower court’s verdict. The court ruled that Fincher had failed to establish a discrimination claim. The court also noted that Fincher could not bring a retaliation claim based on DTCC’s failure to investigate. Failure to investigate the original discrimination claim was not an adverse employment action, ruled the court. The court explained that recognizing such a claim could lead to employers being sued for refusing to investigate obviously false claims.

The court clarified its position in the written opinion of the case. “We do not mean to suggest that failure to investigate a complaint cannot ever be considered an adverse employment action for purposes of a retaliation claim. It can be if the failure is in retaliation for some separate, protected act by the plaintiff.”

As an example, the court referenced another decision where an employer was found guilty of retaliation after failing to investigate a death threat made against a plaintiff who had filed a discrimination claim. “The refusal to respond to the employee’s complaint of a death threat was allegedly in retaliation for his separate and earlier complaint of discrimination,” explained the court. “The employee contended that if he had never complained of discrimination, his complaint of a death threat against him would have been investigated.” (Fincher v. Depository Trust and Clearing Corporation, U.S. Court of Appeals for the Second Circuit, No. 08-5013-cv, 2010)


DNA. A bill (H.R. 4614) introduced by Rep. Harry Teague (D-NM) that would provide grants to states for DNA collection has been approved by the House of Representatives. The bill is now pending in the Senate Judiciary Committee.

The bill would increase existing grant funds for states that have DNA collection programs. Funds would be increased by 5 percent for those states implementing a “minimum DNA collection process.” This is defined as a system that searches the FBI’s DNA database at least once for possible matches to crimes involving murder, manslaughter, sexual assault, or kidnapping. Grants would be increased by 10 percent for an “enhanced DNA collection process,” under which states would collect DNA samples from individuals 18 years old or older who are arrested or charged with crimes involving murder, manslaughter, sexual assault, sexual offenses involving a minor, burglary, and aggravated assault. States would then provide those samples to the FBI for inclusion in the database.


New York

CRIME. A New York bill (A.B. 2952) would prohibit police or peace officers from using excessive force either defensively or in making an arrest or preventing an escape. The bill would also make it a misdemeanor for a police officer to intend to kill rather than stop a person. The introduction of the bill was prompted by the case of Sean Bell, a 23-year-old man who was shot and killed by police on his wedding day after hitting an unmarked police car with his van.


TRADE SECRETS. A new Alabama law (formerly H.B. 102) will increase the penalties for trade-secret theft. It is now a felony for a person to intentionally pay or recruit a third party to steal or attempt to steal a trade secret from his or her employer.

This column should not be construed as legal or legislative advice.