Public Complaint No. 1722633044 - 1172553281

From Montana HRB Case No. 240091, EEOC Case No. 32D-2024-00091 "Evidence displays that Reyna worked for Plains as a police officer beginning in January 2016, without issue, until January 25, 2023, when Allen and Josephson met with Reyna in order to issue him a written reprimand. This disciplinary action occurred approximately five weeks after Reyna’s initial complaint. In their witness statements, both Allen and Josephson provided that Reyna’s poor safety techniques and violations of Plains’ “pat down” and “handcuffing” policies was addressed with Reyna well before Reyna engaged in protected activity. In his witness interview, Josephson provided that he had verbally counseled Reyna on multiple occasions regarding Reyna’s failure to conduct pat downs or properly handcuff offenders during transport. Reyna denies he was ever counseled, verbally or otherwise. On January 30, 2023, Josephson sent an email to Reyna, seemingly, in follow up to the January 25, 2023, meeting between Josephson, Allen and Reyna. In this email, Josephson acknowledged that he had not previously spoken to Reyna regarding any deficiencies regarding pat down searches or handcuffing, when Josephson wrote: “you informed me that you follow policy, clearly this is not the case when it comes to handcuffing and pat searches. When I observed you handcuffing in front and not performing a pat search of your arrestee, I believed it may have been a one time or possible two-time slip in judgement and may self-correct itself so I gave you the benefit of the doubt by not saying anything about it. Clearly, that was a mistake on my part and will not happen again.” By Josephson’s own admission, it was only after receiving Reyna’s December 15, 2022, complaint that Josephson first raised concern regarding Reyna’s pat down and handcuffing techniques. Plains offers no credible, non-retaliatory reason for this abrupt change of direction. Additionally, this calls into question the credibility of Josephson. On January 31, 2023, Reyna filed a second complaint against Josephson, referencing “the unethical, immoral or illegal practices of the police department.” Plains asserts it conducted a neutral investigation into Reyna’s allegations. On February 21, 2023, Allen sent an email to Fitzpatrick informing him that Allen had “at [Josephson’s] request, sent an email to a detective in the sheriffs office” to conduct “an investigation of our police department due to recent allegations against the Chief and the department.” It is not uncommon for an employer to retain a neutral third-party to investigate employee complaints in the workplace. This is meant to ensure that the selected investigator can maintain neutrality, bearing in mind the subject matter of the complaint and the parties involved. However, the detective (Martin Spring) retained by Josephson was not neutral. Here, it is worthy of note that Josephson had previously worked closely with Spring, in their respective positions as Sanders County Sheriff’s Office detectives. It is concerning to this investigator that given Spring and Josephson’s close professional relationship, Plains went forth with its selection of Spring to investigate. The result is exactly what one might have expected from the selection of such an investigator. Spring’s report opens with a statement of purpose, “to open an investigation into the Plains Police Department and Chief Brian Josephson referenced [sic] allegations made by Plains Police Officer Chris Reyna.” The 29- page report then goes on – at length – to discredit Reyna rather than examine Reyna’s allegations against the Plains Police Department. Likely due to the absence of neutrality, the report makes no mention of information that undermines Josephson’s accusations against Reyna. The most glaring example involves Plains’ primary reason for terminating Reyna’s employment, that Reyna allegedly falsified police records. At the very least, this accusation relies on a misrepresentation by Josephson. Plains provided that Josephson had instructed all Plains police officers to provide proof of written warnings in lieu of verbal warnings. Plains claims it was Spring’s investigation that discovered Reyna had falsified official ADSI records, which ultimately led to the termination of Reyna’s employment. In his witness statement, Reyna stated that although Josephson’s instructions to provide proof of written warnings in lieu of verbal warnings was unclear, he understood Josephson’s directive to mean that Reyna was to create written verbal warnings, retroactively, for the verbal warnings he had provided during traffic stops. Reyna further provided that in order to document these written verbal warnings, he “made up a ADSI software record number” by using his badge number and “a series of other random numbers.” In his witness statement, Josephson provided that Reyna had changed prior verbal warnings into written verbal warnings and created ADSI records with “citation numbers that did not exist.” Josephson acknowledged this action by Reyna had no impact on the affect or outcome of the warning provided to the citizen who had been issued the initial verbal warning. However, in Josephson’s “opinion” Reyna “was fabricating information” that could cause an issue if the police department “were to undergo an audit.” The most troubling part is that Josephson himself could not articulate to this investigator what actions he intended Reyna to take based on his instruction for “officers to provide proof of written warnings in lieu of verbal warnings.” Seemingly, this instruction reflected a change in terminology used by the Plains Police Department based on Josephson’s preference for “written verbal warning” over “verbal warning.” Reyna credibly states that he believed he was following Josephson’s directive. It is unsurprising to this investigator that an unclear directive from a supervisor would lead to an unintended action by a subordinate. It is surprising, however, that Spring’s report would look past Josephson’s unclear directive and instead land on a finding that Reyna falsified police records. Such a conclusion is unsupported when one considers all of the evidence, not just the evidence in support of the conclusion. However, much more worrisome, and further complicating matters for Plains in its selection of Spring, were the disparaging statements Spring made about Reyna. Spring participated in a witness interview with this investigator during which Spring provided that prior to agreeing to investigate Reyna’s complaints against Josephson, and in his capacity as a Sanders County detective, Spring had worked with Reyna “on occasion.” Spring then expressed his opinion that Reyna was not a good police officer and that Reyna’s “officer safety sucked!” Spring further provided that he had complained about Reyna to Josephson on several occasions. To be clear, Spring’s complaints about Reyna predated the selection of Spring to investigate Reyna’s complaints against the Plains Police Department. Perhaps Plains officials were duped by Josephson into believing that Spring would act as a neutral investigator. This remains unclear. However, the report itself confirms that Spring did not act as a neutral investigator. Both Josephson and Allen avow that Reyna simply was not a good police officer. However, neither witness offered evidence, circumstantial or otherwise in support of their assertion. Furthermore, Plains offered no credible evidence suggesting that performance deficiencies were addressed with Reyna prior to the protected activity in which he engaged. Charging Party proves by a preponderance of the evidence that Respondent’s proffered reasons for its actions are pretext for retaliation. IV. CONCLUSION Based on my investigation, I find reasonable cause to believe unlawful discrimination occurred as alleged in Charging Party’s complaint." May 28, 2024 Carla Lott Montana Human Rights Bureau Josephson's actions, including his influence on the biased investigation, are grounds for a Brady List complaint due to his lack of credibility and involvement in retaliatory practices.