Vierra v. Rhode Island Municipal Police Academy

Citations: 539 A.2d 971; 1988 R.I. LEXIS 46; 47 Empl. Prac. Dec. (CCH) 38,209; 54 Fair Empl. Prac. Cas. (BNA) 1746; 1988 WL 25248Docket: No. 86-276-Appeal

Court: Supreme Court of Rhode Island; March 28, 1988; Rhode Island; State Supreme Court

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The Supreme Court affirmed a permanent injunction from the Superior Court that prohibited the Rhode Island Municipal Police Academy from denying Debra L. Vierra a certificate of graduation. Vierra had initially filed a sex discrimination charge against the academy in 1983, challenging a pre-entrance agility test. The case resolved in her favor, leading to the cessation of the test and compensation. After enrolling in the academy in August 1984, she was dismissed for failing the swimming component but obtained a temporary restraining order allowing her to rejoin and complete the program. Although she attended the graduation ceremony, she was denied a graduation certificate due to her earlier dismissal. Vierra was later employed by the town of Tiverton but needed the graduation certificate for permanent status. When the academy required her to retake the entire course instead of just the swimming component, Vierra secured another restraining order to attend only the swimming sessions. She completed the swimming course in February 1986 and subsequently received the permanent injunction. The court found that the academy had deviated from its prior practices, as evidenced by male recruits being allowed to retake individual courses without repeating the entire program.

The academy awarded graduation certificates to recruits who completed the course. The trial justice determined that the academy had no prohibitions against candidates returning to retake failed courses, nor did it require passing all courses in a single session or limit retakes. It was concluded that the plaintiff’s previous legal actions against the Rhode Island Municipal Police Academy influenced the decision for her to retake the entire program, infringing upon her First Amendment rights and violating G.L. 1956 (1979 Reenactment, 28-5-7(E, as amended by P.L. 1982, ch. 299, l.1). The treatment of the plaintiff was found to be unequal compared to male candidates, violating her Fourteenth Amendment right to equal protection. The defendants failed to prove that their decision would have been the same without considering the plaintiff’s First Amendment activities. Consequently, a permanent injunction was issued, preventing the defendants from withholding her graduation certificate. On appeal, defendants argued that the trial justice erred by allowing the plaintiff’s counsel to serve as both counsel and witness. The trial justice admitted an affidavit from the plaintiff’s counsel regarding missing documents, which was deemed appropriate given the circumstances, including the consolidation of hearings under Rule 65(a)(2) of the Superior Court Rules. The affidavit reported on document reviews conducted after the deponent failed to bring all requested materials to his deposition and did not include any opinions from the plaintiff’s counsel.

Defendants did not contest the content of the affidavit during the preliminary injunction hearing but only objected to its form, which was deemed acceptable under Rule 65(a)(2) for expediting relief. The affidavit's admission was justified, even if it could be viewed as testimony, as it complied with the Code of Professional Responsibility's disciplinary rules. Defendants also argued that the trial court erred by proceeding on the plaintiff's complaint in Providence County while a similar action was pending in Newport County. However, the court referenced Gnys v. Amica Mutual Insurance Co., affirming that a prior action can lead to abatement of a second only if it meets the criteria for res judicata, which was not applicable in this case due to significant differences in the issues raised. The Newport County complaint involved the plaintiff seeking reinstatement after dismissal for failing a swimming component, whereas the Providence complaint sought to prevent the academy from mandating a full program repeat for graduation. The plaintiff's Newport action was foundational to her Providence claim, alleging retaliation for her prior lawsuit. Consequently, the Providence action was appropriately heard. Lastly, the defendants claimed the trial justice's factual findings were incorrect; however, the trial justice determined that the plaintiff's previous legal actions substantially influenced the academy's decision regarding her return to the program.

The Supreme Court in Mt. Healthy City School District Board of Education v. Doyle established the standard for public employees claiming wrongful termination due to First Amendment-protected activity. The plaintiff must initially demonstrate that their conduct was constitutionally protected and a significant factor in the employer's decision to terminate them. If successful, the burden shifts to the employer to prove, by a preponderance of the evidence, that they would have made the same decision regardless of the protected conduct. 

In this case, the plaintiff's claims were rooted in the right to petition under the First Amendment. The trial justice noted that employers rarely admit to retaliatory motives, making circumstantial evidence crucial in these cases. The trial justice found substantial evidence suggesting retaliatory motivation, particularly concerning the disparate treatment of male recruits compared to the plaintiff regarding course attendance and the requirement to retake an entire course after failing one component. The defendants did not provide a satisfactory explanation for this differential treatment or contest the trial justice's factual findings, which the court deemed reasonable. Consequently, the defendants' appeal was denied, the injunction affirmed, and the case remanded to the Superior Court. Additionally, the relevant law prohibits discrimination against individuals for opposing unlawful practices or participating in investigations or proceedings related to such practices.

Disciplinary Rule 5-102(A) mandates that a lawyer must withdraw from a trial if they, or a lawyer from their firm, are likely to be called as witnesses after commencing representation in pending litigation. However, exceptions exist allowing continued representation and testimony under specific circumstances outlined in DR 5-101(B)(1) through (4). DR 5-101(B) prohibits a lawyer from accepting employment in pending litigation if they know they may be called as a witness, with exceptions for uncontested matters or formalities where substantial opposing evidence is unlikely. Additionally, Rule 65(a)(2) of the Superior Court Rules of Civil Procedure allows for a preliminary injunction application to be heard using evidence or affidavits, with the option for the court to consolidate this hearing with a trial on the merits. The refusal to provide the plaintiff with a graduation certificate from the academy is equated to a discharge, as this certificate is essential for achieving permanent police officer status.