The Register-Herald, Beckley, West Virginia

State News

November 5, 2012

Fired Sophia officer amends federal lawsuit

BECKLEY — A former Sophia police officer who says he was fired because he’s black has added a new charge to the federal lawsuit against his former chief — deliberately spoiling evidence.

An amended complaint filed last week in U.S. District Court in Beckley claims that Sophia Police Chief Tomi Peck produced what she said was an investigation report on officer Damon McDowell for his unemployment hearing in May.

But McDowell alleges she then failed to preserve the computer records that would show whether the three-page document was created before or after she fired him, effectively denying his lawyers the chance to confirm whether the document was “forensically sound.”

Rather than protect the computers, Peck allowed them to continue being used, creating the probability that the relevant files would be deleted or overwritten, the complaint said. In fact, the defendants now say the report and other documents “are no longer believed to exist” on those computers.

“With their conduct in failing to preserve evidence for more than six months,” the complaint says, “defendants have intentionally spoliated evidence.”

Peck’s attorney, Chip Will-iams, said his client denies the latest allegations, but he declined further comment because the litigation remains active.

The complaint also claims that Peck has altered documents since the lawsuit was filed in April.

During the May hearing, for example, she said she had not included in her investigative report the fact that McDowell allegedly failed to show up for a disciplinary meeting. But when that document was produced for the lawsuit Oct. 15, the words “Final Insubordination-Failed to show for mandatory meeting” were handwritten on it.

“Clearly,” the complaint says, “the document was altered after the fact.”

The complaint also says Peck changed a “time line” document to alter the date of McDowell’s termination from March 23 to March 24.

Peck says she fired McDowell after he left an Applebee’s in Beckley without paying his bill, but McDowell claims he’s the victim of a conspiracy cooked up to force him to resign.

McDowell, the only black officer on the Sophia force, was fired earlier this year after just six months on the job. He contends it was the culmination of harassment schemes that included hiding paperwork so he’d miss court appearances, drawing penises on his papers and telling jokes with a racial epithet in his presence.

The lawsuit also alleges Peck denied McDowell training opportunities in favor of white officers, even when one had already resigned and the other had less seniority.

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