INVESTIGATING STAFF SEXUAL MISCONDUCT Employment Law Considerations National Institute of Corrections/American University, Washington College of Law July.

INVESTIGATING STAFF SEXUAL MISCONDUCT

Employment Law Considerations

National Institute of Corrections/American University, Washington College of Law

July 7-12, 2002

CORRECTIONAL INSTITUTIONS AS EMPLOYERS

In relationship to an employee, managers of a correctional institution are:

– 1) Invested with the state’s police power– 2) (usually) public employers subject to federal

and state constitutional law– 3) employer subject to general employment

laws

THE THREE ROLES OF CORRECTIONAL INSTITUTION MANAGERS

Police Powers Public Employer General Employer

DIFFERENT SOURCES OF LAW

Police Powers -- Criminal and Constitutional Law

Public Employer -- State and Federal Constitutional and Statutory Law

General Employer -- Title VII, Common Law, and Other Laws

POLICE POWER

CRIMINAL LAW vs. EMPLOYMENT

LAW Garrity - statement compelled as condition

of employment cannot be used against employee in criminal prosecution

if criminal prosecution is a goal, employment issues must be handled differently

CASE EXAMPLE ONE

FACTS:

Corrections officer placed on administrative leave pending investigation of alleged sexual misconduct with an inmate

Officer informed, by supervisors and employee handbook, that if he did not cooperate with police and take a polygraph test, he would be terminated

Officer filed motion to suppress self-incriminating statement and polygraph results because they were made under fear of losing his employment

RESULT:

Trial Court granted motion to suppress and Court of Appeals affirmed

• Officer reasonably believed that he had no choice but to make statement to police as part of internal investigation

• Moral: State can either:– Compel answers to job related questions as a part of internal

investigation, which cannot be used in criminal investigation, or– Choose to prosecute, in which case cannot terminate for failure

to answer job related questions

STATE V. CHAVARRIA

33 P.3d 922 (N.M. App. 2001)

EXAMPLE TWO

FACTS:

Correction officer was arrested and indicted on charges of 3rd degree rape and other charges related to alleged sexual misconduct with an inmate

Officer was ultimately acquitted of all charges Officer filed suit against the county and county

investigator, alleging false arrest and malicious prosecution

Officer argued no probable cause for arrest because investigator induced accuser, who had a history of mental illness and drug abuse, to fabricate accusations

RESULT:

defendant’s motion for summary judgment granted because:

• No evidence that investigator induced allegations

• Questions about veracity of informant doe not automatically defeat probable cause

– Investigators found sufficient corroborating evidence

– Moral: Finding of probable cause defeats a malicious prosecution claim

CORONA v. LUNN

2002 WL 550963 (S.D.N.Y. 2002)

PUBLIC EMPLOYERS

CONSTITUTIONAL REQUIREMENTS APPLY TO GOVERNMENT ACTING

AS EMPLOYER

due process rights privacy rights

BALANCING TEST

Courts will balance employer needs against employee rights to some extent in employment context

EXAMPLE

Facts:– Food Service supervisor accused by a third party witness of

sexual misconduct with an inmate– Employee suspended without pay for two weeks, pending

investigation– After investigation concludes with accusation

unsubstantiated, employee reinstated with full back pay– Employee alleges violation of due process rights based on

lack of pre-suspension hearing

– Court balanced: • minimal intrusion on employee’s rights: Suspension

was temporary and lost wages were insubstantial, against

• Prison’s substantial interest in the investigation and safety concerns

MACKLIN v. HUFFMAN

976 F. Supp. 1090 (W.D. Mich. 1997)

KEY EMPLOYMENT LAW ISSUES

discrimination defamation

SEX/RACE DISCRIMINATION CLAIMS

Plaintiff must show treated differently from others of same group

Best defense is to show all people are treated equally

EXAMPLE ONE

FACTS:

Native American-Hispanic corrections officer accused of sexual misconduct by inmate in the “special needs unit”

Officer was placed on administrative leave with full pay, pending investigation

Officer reinstated and promoted after investigation failed to turn up evidence of misconduct

Officer filed suit, alleging administrative leave was racially motivated, violating state anti-discrimination laws– Placed on leave, despite exemplary record, as a result of accusations by an

inmate with credibility issues

– Alleged that At least one white officer was not placed on leave following similar allegations

RESULT:

At the trial level, jury found for officer. Defendant appealed, claiming results of polygraph test on inmate should have been admissible to rebut charge of discrimination

The appellate court reversed the lower court’s decision– no racial motivation established, similarly situated white officers

treated similarly

– also remanded with instructions to allow the admission of the inmate’s polygraph test

• Polygraph, while not admissible as evidence of officer’s sexual misconduct, was admissible to establish non-discriminatory motive for placing officer on administrative leave

SUBIA v. RIVELAND

15 P.3d 658 (Wash. App. 2001)

EXAMPLE TWO

FACTS:

African American Correctional Supervisor was fired following an investigation into allegations of sexual misconduct with an inmate– Investigation concluded there was sufficient evidence for

termination based on DNA evidence, witness statements, polygraph

Officer filed suit, alleging workplace discrimination, on grounds of – Replacement of African American investigating officer– White officer facing similar accusations was not terminated– General atmosphere of racial intolerance, particularly following

involvement in prior action for systemic racial discrimination

RESULT:

– District Court awarded summary judgment to employer and Court of Appeals affirmed, because:

• Replacement of AA officer was based on conflict of interest• Dismissal of criminal charges had no bearing on evidentiary

results of internal investigation• White officer not terminated ; the two cases were factually

dissimilar. • Two white officers facing similar accusations were terminated. • No nexus shown between circumstantial evidence of racial

hostility and termination decision

ENGLISH v. COLORADO DEPARTMENT OF CORRECTIONS

248 F.3d 1002 (10th Circ. 2001)

MORAL: CONSISTENCY AVOIDS LAWSUITS

enforcing policies in some cases but not others creates a bad evidentiary record

discretionary action can be made to look like something it’s not

important to enforce disciplinary and other policy rules across the board, without exceptions

important to train supervisory staff on this policy

DEFAMATION

EXAMPLE

FACTS:

Prison warden accused of sexually harassing a correction officer Asked to resign by two County officials, which he did a few

days later. article detailing the sexual misconduct charge later appeared in

the paper Warden filed suit on various grounds, including defamation

RESULT:

Employer wins: No defamation because article presented “fair

gist” of investigation report and there was no evidence any official abused their privilege

O’CONNELL v. COUNTY OF NORTHAMPTON

795 F.Supp.2d 529 (E.D.Pa. 1999)

DEFAMATION LAW: SOME BASICS

Defamation covers false statements that damage a person’s reputation

But, it’s better to avoid reaching point in litigation where must argue about truth or falsity of the statements

courts have tried to develop rules that shield employers from frivolous lawsuits

PROTECTION AGAINST DEFAMATION CLAIMS

Even in private sector, “qualified privilege” protects representatives of employers who give out allegedly defamatory information for legitimate business purpose

QUALIFIED PRIVILEGE PROTECTION AGAINST DEFAMATION CLAIMS

To gain protection of qualified privilege, employer must show– lack of malice– good faith– belief in truth of statement made– legitimate business purpose in making allegedly

defamatory statement

BEST PROTECTION IS CONSISTENT, WELL

THOUGHT OUT POLICIES

PROACTIVE STEPS

Establish and adhere to policy limiting dissemination of information about employee investigations

Limit dissemination of information to“Need to know” basis

Implement policies protecting employee personnel files and investigative records

Implement consistent policy on reference checks

Avoid and/or carefully word press releases, etc., especially before investigation complete

SOME OTHER ISSUES

UNIONIZED EMPLOYEES

Disciplinary actions governed by terms of collective bargaining agreement

Employee has right to union representation

Arbitration is key forum for resolving disputes about employee discipline

ARBITRATION

Both sides have right to legal representation and to present evidence

Employer may not interfere with right of employees to testify at arbitration hearing

Arbitrator is not required to follow finding of misconduct in another forum, even a criminal court

PUBLIC SECTOR UNION ISSUES

Rules regarding union activity by state and municipal employees are established by state law, not federal law

State law also defines administrative procedures for public employee discipline

PROACTIVE STEPS IN UNION CONTEXT

Run training sessions, which include clear statement of disciplinary rules

Give union policy statement on disciplinary procedures for staff sexual misconduct

Review collective bargaining agreement for inconsistent terms; request modifications if necessary

NONUNION CONTEXT:PRIVATE SECTOR

Most private-sector nonunion employees are “at will” employees who can be fired at any time for any nondiscriminatory reason

Employee personnel manuals can modify the at-will rule

PROACTIVE STEPS: NONUNION, PRIVATE SECTOR

Check personnel manuals, revise or eliminate any problematic terms

Distribute to employees policy statement on employee sexual misconduct

Develop and adhere to consistent procedures on access to disciplinary and personnel information, reference checks, etc.

PRIVACY ISSUES

In public sector, U.S. constitution applies

basic test is “did the employee have a reasonable expectation of privacy?”

courts will engage in a fact-specific inquiry

PROACTIVE STEPS: EMPLOYEE SURVEILLANCE

Provide general notice about employee surveillance methods

Restrict surveillance methods to those reasonably necessary

Use even-handed procedures for selecting surveillance targets

PSYCHOLOGICAL TESTING

No legal bar under federal law to using, EXCEPT as it may indicate discrimination – e.g., asking about religious views

Should check with your legal counsel about state law bars

In public sector, privacy concerns re: intrusive questions may also be issue

EMPLOYEE POLYGRAPH PROTECTION ACT

federal law prohibits most polygraph testing in private sector but exempts public employees

Many states have rules limiting or prohibiting polygraph testing; check with your legal counsel

IN ALL CONTEXTS:

Document incidents as soon as possible after information is received

Keep clear notes of investigations Take and date witness statements Assign investigators who do not have

personal issues with employee being investigated