# Wagner appeal rejected (HOLYOKE)



## MCOA41 (Sep 5, 2002)

Wagner appeal rejected
Friday, April 15, 2005
By DAVID REID
[email protected] 
SPRINGFIELD - Police Sgt. Robert Wagner has lost an appeal of his federal whistle-blower lawsuit against the city, which he technically won in 2003 but was awarded only $1 in damages.

The decision was announced Wednesday by the U.S. First Circuit Court of Appeals, where a three-judge panel refused to overturn any of U.S. District Court Judge Michael A. Ponsor's pretrial rulings or jury instructions. In his appeal, Wagner sought an increase in damages or a new trial.

In a cross-appeal, the city had asked the court to reduce or dismiss $72,840 in legal fees and costs Ponsor awarded Graham, who had originally asked for $819,000. The court refused to further cut the legal fees.

Both sides submitted briefs late last year and made oral arguments before the court on Jan. 4. Wagner's lawyer, Stewart T. Graham Jr., could not be reached for comment yesterday.

And Wagner - out injured since he broke a leg in November 2003 after a car struck him while answering a call on Route 202 - did not return phone calls or e-mail to his home.

But City Solicitor Karen T. Betournay said the city's hard-fought legal defense paid off.

"We're happy with the appeals court decision," she said.

"Obviously we're pleased, but it's been a long four months," said Northampton lawyer John H. Fitz-Gibbon, the city's lead attorney in the case. "Hopefully, this is the last chapter in this saga."

Unless Wagner chooses to appeal to the U.S. Supreme Court, the eight-year legal battle has come to an end.

Wagner's original case claimed that two former police chiefs and former Mayor Daniel J. Szostkiewicz repeatedly disciplined him after learning that he had cooperated with a 1997 state attorney general's probe of racial discrimination and corruption in the police department.

In its defense, the city said Wagner violated numerous department regulations he helped write as police chief in 1991-94, refused to follow the chain of command, was insubordinate, and released confidential documents.

The six-week trial, which ended in June 2003, resulted in a jury finding that the city did retaliate against Wagner by severely harassing him for protected First Amendment-guaranteed free speech, but awarded him only $1.

Wagner also sought to overturn Ponsor's dismissal of retaliation charges under the state's 1997 Whistle-blower Protection Act because Wagner had failed to notify the city in writing before filing the lawsuit.


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