Fired cop to get $325K settlement from city | May 3, 2019 | Mountain View Voice | Mountain View Online |

Mountain View Voice

News - May 3, 2019

Fired cop to get $325K settlement from city

Lawsuit claimed officer was fired over his military reserve service

by Mark Noack

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 and denied promotions due to their military service, which sometimes created scheduling conflicts. Police Officer Frank Rivas testified that 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.

Email Mark Noack at mnoack@mv-voice.com

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