News

Fired cop to get $325K settlement from city

Judge says officer had 'substantial' evidence of being fired over his military reserve service

Mountain View officials have agreed to pay $325,000 to a former city police officer who alleged he was illegally fired by his supervisors. The settlement ends a longstanding lawsuit, and comes after an appeals court reversed an earlier ruling that was favorable to the city.

The fired officer, Nicholas Emmerling, joined the city's police department in 2008 as a reserve officer and later was hired full-time. But his tenure as a full-fledged officer was short-lived -- police officials terminated his employment less than two years later, citing sub-par performance numbers.

In 2015, Emmerling sued the city, making a string of accusations against the police brass. He alleged the real reason for his firing was because his police supervisors disapproved of his ongoing service in the Army National Guard, and they had created a paper trail of poor performance metrics as a pretext to fire him. He also alleged he was being penalized because he disputed an illegal quota system imposed by police administrators.

The lawsuit was thrown out in 2017 largely due to a lack of evidence, after significant portions of Emmerling's case were ruled inadmissible. But that evidence was given much more consideration after it was brought before the Sixth District Court of Appeals last year. In a decision published in February, a three-judge panel found that Emmerling's case presented "substantial" evidence showing that his termination came as a direct consequence of his military service.

The appellate judges pointed to testimony from four other Mountain View police officials who said they were similarly penalized by the department or denied promotions due to their military service, which sometimes created scheduling conflicts. Police Officer Frank Rivas testified that he was passed over for a position on the SWAT team because his supervisor told him he needed to decide whether to "play Army or be a police officer." Rivas said a police lieutenant derided his military service as "gay military stuff."

City attorneys disputed these accounts as hearsay and speculative, but the appellate judge ruled that it should be taken into consideration as a sign that police commanders had routinely shown disapproval of military service. Like disability or family leave, military service is treated as protected time-off for workers, and employers are prohibited from penalizing them for making use of it.

Knowing this, commanding officers at the police department deliberately tried to hide their motives for terminating Emmerling by creating a paper trail, according to his attorneys. To back up this accusation, Emmerling's attorneys pointed to a 2014 email exchange between two of his supervisors in which they discussed the need to keep him on probation in order to provide time to build a backlog of poor performance records.

"My concern is (Emmerling's) paper trail is not there," Police Lt. Frank St. Clair wrote in a 2014 email. "We would need to heavily document and train his deficiencies."

The appellate court ruled that a reasonable person could conclude that the Mountain View Police had terminated Emmerling based on his military service.

The appellate court's reversal meant that Emmerling's attorneys could now seek a new trial in which large swaths of evidence would now be admissible. Following that decision, city attorneys proposed settling the case, which was later approved by the City Council in a closed-session meeting.

Under the terms of the settlement, the city admits no wrongdoing in the case and Emmerling agreed to a non-disparagement clause. His attorneys declined to comment.

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Comments

30 people like this
Posted by vonlost
a resident of Cuesta Park
on May 3, 2019 at 2:26 pm

Are Police Lt. Frank St. Clair and the other supervisor still employed by the city?


114 people like this
Posted by Otto Maddox
a resident of Monta Loma
on May 3, 2019 at 4:34 pm

Otto Maddox is a registered user.

Wait? Our heroes in blue aren't supportive of our heroes in green?

Say it aint so?!

.. and anyone who denies cops have quotas is only kidding themselves.


7 people like this
Posted by Busty
a resident of Another Mountain View Neighborhood
on May 3, 2019 at 7:29 pm

So this is the MVPD! It’s a bad standard for best practices, and they would seem to have an agenda of their own. MVPD comes across as a rouge force with no transparency for all of this to happen. Imagine how much the city would save by eliminating the police and going with the county sheriffs dept.


7 people like this
Posted by What is next???
a resident of Another Mountain View Neighborhood
on May 3, 2019 at 11:47 pm

Officer Frank Rivas should be gearing up his lawsuit too. By the sounds of his statements he was badly treated. To the point where the man felt the need to talk about all this in court. Can’t wait to see that price tag! $$$$ hope you dont get more scrutiny for being a whistleblower, Officer Rivas.


11 people like this
Posted by Patricia G
a resident of Cuesta Park
on May 4, 2019 at 4:35 am

Four other officers? It sounds like this wasn’t an isolated incident. I hope the city is really taking this seriously.


4 people like this
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on May 4, 2019 at 9:58 am

The Business Man is a registered user.

The City police are proven to have severe problems.

When I got poulled over for having a Vehicle with illegal lighting, I proved it was legal in the Santa Clara Appeallent Court.

The traffic court ruled I was responsible, with no evidence to support it.

It was done by a Lt. in the Sunnyvale police and a Sgt. at Mountain View Police.

THe Santa Clara District Attorney represented the City of Sunnyvale becasue that case came up first.

The citation was written without any evidence that the lighting exceeded the legal levels permitted.

I provided proof the lights were below the maximum power.

I gathered that the Sunnyvale Police had to have a indepenednt review of all of the actions by that officer and the department as a result. In fact that Lt. left the police department shortly after he case was decided. I can only suspect what was occuring in Sunnyvale Police Department regarding the consequnces of that case decision.

Given the information established in the appellant court in this case, the same will be neccessary for the Mountain View police department whether there is undue coersion regarding officers having to issue minimun legal actions, especially if they were frivolous or without evidence.

Just thinking.


5 people like this
Posted by MVPD needs to get their act together
a resident of Sylvan Park
on May 4, 2019 at 11:47 am

MVPD needs to get their act together is a registered user.

I was ticketed over $200 in the evening for blocking a 'wheelchair ramp' at a closed office building, the so-called narrow steep ramp was used for delivery by handcart/dollie. It was clearly not a wheelchair ramp. The 'officer' who issued the ticket was a part-timer, college student. His sergeant would not take care of it, I had to speak to the part time 'officer' who gave me attitude and refused to admit his error,then when he agreed to correct it, took weeks. Everytime I called for status, they would just say it had been submitted, finally connected with an admin who told me the changes are only processed on Fridays. She located the hardcopy change form which had been sitting there for over a week, she took care of it but it was very frustrating, time consuming experience. You would think the traffic officers would KNOW how the process works rather than putting the burden on me to figure it out for them.


11 people like this
Posted by Army Vet
a resident of Old Mountain View
on May 4, 2019 at 2:59 pm

It's time for Chief Bosel to resign and step down. It is very well known throughout town that MVPD is anti-military and anti-veteran.


5 people like this
Posted by Dave
a resident of Another Mountain View Neighborhood
on May 6, 2019 at 8:59 pm

This settlement does not surprise me in the least. The culture in this department has been rotten to the core for years now, and we all know the fish rots from the head. This verdict make one wonder if that other personnel lawsuit involving the dispatcher also had merit. Regardless, I've had multiple, non-crime related contacts with various officers over the past decade, and they always seem to conduct themselves with the utmost unprofessionalism in some way or another whether just rude verbally or an downright violation of constitutional rights.


8 people like this
Posted by Reservist
a resident of Another Mountain View Neighborhood
on May 7, 2019 at 5:06 pm

@ Dave. I couldn't agree with you more. Very well said.

So based on this article and the one in the Palo Alto Daily Post (which I highly recommend reading), at least two MVPD lieutenants are not honest and willing to fabricate statements. That's very scary. And one is apparently homophobic and is in need of diversity training. Moreover, the departments disdain for military service is shocking and shameful, especially here in Mountain View which is still very much a military town and home to a very large presence of Army Reserve and National Guard Units, to include the 129th Air Rescue Wing. Perhaps adequate punishment for MVPD leadership is mandatory attendance at one of the many weekend drills where service men and women "play army". Please come out in person and let us know your true thoughts about us face-to-face. I'm sure it would clear up any misunderstandings.


1 person likes this
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on May 7, 2019 at 6:31 pm

The Business Man is a registered user.

Simply put, why does anyone trust this agency anymore?

An appeals court caught them with misconduct and declared so.

In effect, this raises questions regarding all investigations and citations issued by the City, doesn't it?

Doesn't this mean that the the cases and citations are required to be reheard or potentially dismissed because of this misconduct?

Why is this not being discussed?


6 people like this
Posted by The simple answer
a resident of Another Mountain View Neighborhood
on May 8, 2019 at 12:10 pm

"In effect, this raises questions regarding all investigations and citations issued by the City, doesn't it?"

No...I mean SOMEONE may take that stance, but not a rational thinker.


1 person likes this
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on May 8, 2019 at 12:28 pm

The Business Man is a registered user.

In response to The simple answer you said:

“"In effect, this raises questions regarding all investigations and citations issued by the City, doesn't it?"

No...I mean SOMEONE may take that stance, but not a rational thinker.”

Really, how about that the misconduct would invalidate the dup process requirements.

In effect, now that the department has been caught in misconduct by the appeals court, anyone impacted by the police department can be assessed as a violation of due process. The courts are now required to rehear any issues initiated by the police department, and determine is that misconduct led to the action.

I just wanted the people to understand this.


9 people like this
Posted by The simple answer
a resident of Another Mountain View Neighborhood
on May 8, 2019 at 1:27 pm

Just because an argument CAN be dreamed up does not make it valid or worth perusing.

It's OK, the internet is filled with people who "Just want the people to understand" this or that important thing they thought about. Don't get me wrong; this is absolutely the place for those folks, so welcome aboard and enjoy your time here.


Like this comment
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on May 8, 2019 at 2:06 pm

The Business Man is a registered user.

The Simple Answer:

Sorry, all citizens are ENTITLED to DUE PROCESS.

If ANY misconduct is accepted practice, like in Mountain View found by the appeals court, it DISQUALIFIES all actions until PROVEN corrections have been made.

So if the MVPD does not review its actions and report it to the court, the cases must be DISMISSED or VACATED.


10 people like this
Posted by Reader
a resident of Another Mountain View Neighborhood
on May 8, 2019 at 3:42 pm

"It's OK, the internet is filled with people who "Just want the people to understand" this or that important thing they thought about."

I understand that the medical term for it is Narcissistic Personality Disorder. (Not joking here, sadly: A practicing and well-respected local psychiatrist pointed to similar online comments as suggestive evidence for exactly that diagnosis.)


9 people like this
Posted by nihilist
a resident of Sylvan Park
on May 8, 2019 at 3:56 pm

Yep, sometimes people post a lengthy messages (with some or all words in capital letters) in attempt to share the very important thoughts that cannot be wasted. We need to read these messages very carefully, soaking in the wisdom that was so benevolently poured upon us.


2 people like this
Posted by JG
a resident of another community
on May 8, 2019 at 5:36 pm

Read the decision.

Web Link...

Surprised by the "Gay" and "Homo" remarks quoted in the evidence. Terms were used as a pejorative, it appears, by a senior City of Mountain View employee (of the city police department)... allegedly.

Why does the city of Mountain View abide such homophobia in one of its senior police department officials? So much for that diversity training Lt.

Appellate court judge Allison Danner writes "...evidence supports a reasonable inference that Emmerling's supervisors made multiple false statements."

Shocking.

Is judge Allison Danner indicating that senior police officers at the City of Mountain View made false statements?

Might there be other false statements associated with sworn testimony offered by these officers?


Like this comment
Posted by The Business Man
a resident of Another Mountain View Neighborhood
on May 8, 2019 at 7:04 pm

The Business Man is a registered user.

THe fact that the court found:

In addition to the above evidence of a material dispute over the performance evaluations, Emmerling has put forth evidence showing that supervisors involved in writing and reviewing his performance reports harbored animus against reservists. Sergeant Soqui, who authored the May 2014 critical performance evaluation, made a derogatory comment about another reservist's leave, referring to it as "vacation." And Lieutenant Oselinksy, who reviewed Emmerling's performance evaluations, referred to military leave as "gay military stuff" or "homo military stuff." A reasonable juror could infer from such remarks that Emmerling's supervisors acted with discriminatory intent when writing and reviewing his performance evaluations. As Emmerling points out, "[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 147.) "Pretext may be demonstrated by showing `. . . that the proffered reason had no basis in fact. . . . [Citation.]' [Citation.]" (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224, fn. omitted.) Emmerling has put forth admissible evidence sufficient to support an inference that his supervisors' performance evaluations were unfairly tilted or colored against him for discriminatory reasons."

Simply put, the making of false statements in performance reviews are illegal as a meterial fact. Making any false statements thereby establishes that any act by this agency is required to now be supported by more than just their testimony, or evidencs handled by them, given that they falsify material legal records and reports.

DUE PROCESS requires that if any questions arise regarding the authenticity of any reported actions by such an agency, their actions are UNCONSTITUTIONAL and thus any cases without outside legal review must be VACATED or DISMISSED.


Like this comment
Posted by See?
a resident of Another Mountain View Neighborhood
on May 9, 2019 at 5:08 am

You were totally wrong! Proven and locked down. NEEEXT!


3 people like this
Posted by Army Vet
a resident of Old Mountain View
on May 9, 2019 at 6:12 pm

`make something out of nothing'

The statement above and described below from the appellate court should be of concern to all. We apparently have a police force that is willing to violate our basic civil rights.

Several reports, however, criticized Emmerling for performing inadequately by failing to execute a sufficient number of self-initiated arrests despite his supervisors urging him to increase such arrests.3 For example, an evaluation issued in April 2013 stated that Emmerling "consistently looks for, although not always successfully, traffic stops between calls for service. I feel that his number of subject contacts isn't as high as it could be because Emmerling looks for a particular type of violation, and sometimes misses other opportunities." The authoring supervisor encouraged Emmerling "to investigate further whenever he has the slightest suspicion, and to always look for an opportunity to `make something out of nothing.'"


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