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  1. INVESTIGATING STAFF SEXUAL MISCONDUCT Employment Law Considerations National Institute of Corrections/American University, Washington College of Law July 7-12, 2002

  2. 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

  3. THE THREE ROLES OF CORRECTIONAL INSTITUTION MANAGERS • Police Powers • Public Employer • General Employer

  4. 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


  6. 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


  8. 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

  9. 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

  10. STATE V. CHAVARRIA • 33 P.3d 922 (N.M. App. 2001)


  12. 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

  13. 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

  14. CORONA v. LUNN • 2002 WL 550963 (S.D.N.Y. 2002)



  17. BALANCING TEST • Courts will balance employer needs against employee rights to some extent in employment context

  18. 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

  19. 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

  20. MACKLIN v. HUFFMAN • 976 F. Supp. 1090 (W.D. Mich. 1997)

  21. KEY EMPLOYMENT LAW ISSUES • discrimination • defamation

  22. SEX/RACE DISCRIMINATION CLAIMS • Plaintiff must show treated differently from others of same group • Best defense is to show all people are treated equally


  24. 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

  25. 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

  26. SUBIA v. RIVELAND • 15 P.3d 658 (Wash. App. 2001)


  28. 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

  29. 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

  30. ENGLISH v. COLORADO DEPARTMENT OF CORRECTIONS • 248 F.3d 1002 (10th Circ. 2001)

  31. 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



  34. 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

  35. RESULT: • Employer wins: • No defamation because article presented “fair gist” of investigation report and there was no evidence any official abused their privilege

  36. O’CONNELL v. COUNTY OF NORTHAMPTON • 795 F.Supp.2d 529 (E.D.Pa. 1999)

  37. 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

  38. PROTECTION AGAINST DEFAMATION CLAIMS • Even in private sector, “qualified privilege” protects representatives of employers who give out allegedly defamatory information for legitimate business purpose

  39. 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


  41. 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

  42. Implement consistent policy on reference checks • Avoid and/or carefully word press releases, etc., especially before investigation complete


  44. 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

  45. 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

  46. 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

  47. 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

  48. 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

  49. 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.

  50. 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