A former Franklin police officer who was fired earlier this year has filed a second lawsuit against the city, this time alleging in federal court that he was fired based on his age.
Bryan K. Burton, 42, argues in his lawsuit that police Chief Tim O’Sullivan has allowed several younger officers to remain at the department when they faced allegations of criminal conduct that did not result in criminal charges, and has hired several officers who are in their 20s who had prior criminal convictions, the lawsuit said.
He also argues that his termination was part of a “systemic effort to drive out older, experienced officers who possessed independent judgment and to replace them with a younger force,” the lawsuit said.
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Allegations in a civil lawsuit are the opinion of the person filing them and may be refuted in court. Burton, who is represented by the Indianapolis law firm Brown Tompkins Lory in the federal suit, is asking for punitive and compensatory damages. The city has asked the court to dismiss the suit.
The lawsuit was filed this summer in U.S. District Court for the Southern District of Indiana and is against the city and O’Sullivan. The matter is one of three cases between Burton and the city.
He has filed a lawsuit in Johnson Superior Court 4 to challenge his termination by the Franklin Police Merit Board, and the city had fought Burton’s unemployment pay, but an administrative law judge has sided with Burton.
Burton was fired by the merit board in May after it found him guilty of two internal disciplinary charges: conduct unbecoming an officer and conduct injurious to the public peace and welfare. The charges stem from Burton’s Oct. 23 arrest on a felony domestic battery charge and statements he made to the police chief in a meeting days before his arrest.
A special prosecutor decided Burton should not face criminal charges, but O’Sullivan sought Burton’s termination by the merit board, which agreed after conducting a hearing.
Burton gave the Daily Journal public records regarding four current police officers who were arrested as many as 14 years ago, before they were hired by the city.
Three of the officers were arrested on misdemeanor charges of underage consumption. A fourth officer was charged with a felony count of resisting law enforcement and reckless driving in 2004, but was found guilty by a judge of misdemeanor reckless driving, and not guilty of resisting police, the records show.
The four men were college-aged or in their early 20s when they were arrested and were not police officers at the time.
Candidates for the police department undergo extensive background checks, including their criminal history, and are hired by the merit board, an appointed five-member board that can consider the chief’s hiring, firing and discipline suggestions.
In the city’s motion asking the court to dismiss the suit, the attorneys say that Burton cannot show that the city has a policy or widespread practice that deprives people of their constitutional rights or that his termination was caused by a person with final policymaking authority, because O’Sullivan does not have the authority to fire officers.
“There is nothing to draw a reasonable inference that Franklin established a policy or practice of intentionally discriminating against police officers based upon their age,” the city’s motion said. The city is represented by Williams Barrett & Wilkowski of Greenwood. Bill Barrett also is the attorney for the merit board, and has been hired by the city’s insurance company to represent it in Burton’s lawsuit seeking an appeal of his termination.
“The only well-pleaded, alleged facts contained in the complaint with respect to the treatment of older police officers relate to the alleged facts surrounding plaintiff’s (Burton) termination, and specifically there are no factual allegations concerning any facts that could reasonably be construed as reflecting a municipal policy to remove older officers from the police force,” the motion said.
Burton also has filed a lawsuit against the city that is an appeal of the decision to fire him. In the local lawsuit, he claims the process used to terminate him violated his rights and didn’t include all of the needed evidence and testimony.
Burton’s appeal focuses on an allegation that O’Sullivan did not conduct an internal investigation or have the internal review board consider the matter before seeking Burton’s termination, which violated his due process; a member of the merit board should have recused himself from the matter based on his previous comments about Burton, violating his right to a fair, unbiased hearing; and that some evidence rulings during the hearing were incorrect, specifically regarding a lie detector test, Burton has said. No attorney is listed as representing Burton in the local lawsuit.
Separately, Burton is receiving unemployment pay from the city through the Indiana Department of Workforce Development. The city fought his unemployment pay, but an administrative law judge for the state ruled in favor of Burton after hearing evidence and testimony from Burton, O’Sullivan and city attorney Lynn Gray in August.
The judge determined that the city fired Burton without just cause, the ruling said.
At issue was whether the city has a policy in place that a specific action will result in an employee’s termination, and if that policy is evenly and uniformly enforced. The city provided evidence and explanation of the merit board process, including local rules and state laws, that govern when a police officer can be fired, and also provided the details of Burton’s extensive disciplinary history as a police officer.
The city also argued that Burton couldn’t receive unemployment because he earns money from his own construction company, records show.
In a five-page ruling, the judge said that O’Sullivan’s testimony wasn’t credible when he said it was important that Burton be honest about the status of his marriage because the city could have offered him help, relating to the departmental charge that Burton had been dishonest with the chief. Because the city didn’t offer Burton help following four previous domestic incidents that resulted in police being called, the judge did not find the chief’s testimony credible, the ruling said.
The judge also noted that the city had made an assumption that Burton lied to the chief regarding the status of his marriage in an Oct. 19 meeting, based on the fact that the couple was having marital problems on Aug. 30 and Oct. 23, but that there is no evidence that he was lying on that day, the judge wrote.
Burton told the judge that he did not batter his wife on Oct. 23, and because he was not charged or convicted, his testimony was deemed credible, the judge wrote.
The judge also took issue with the police department’s and merit board’s definition of conduct unbecoming an officer, because it lists general descriptions of behavior rather than specific conduct.
Burton is eligible for unemployment pay because city policies must be uniformly enforced and employees must know precisely what actions are prohibited and what is acceptable, the ruling said.
The city will not appeal the decision, but stands by the merit board processes and decision, Gray said. The unemployment laws are designed to benefit the terminated employee and are separate from the laws regarding merit boards, Gray said.
The judge’s decision and findings are not admissible in Burton’s lawsuits against the city, she said.