November 2006 SBH Quarterly Newsletter
PDF FormatEmployment Law Update
Employee’s Self-Initiated Investigation of Coworker not a Matter of
Public Policy.
Two public safety officers (PSOs) were fired for investigating a coworker.
They brought suit against the employer for wrongful discharge: termination
for promoting important public policy. The PSOs grew suspicious of coworker
Dixson, who claimed to have been a law enforcement officer for 30 years with
the VA and had two separate registration numbers. Dixson was fired when his
driver’s license was revoked, but the PSOs were not promptly informed. In
the interim, Dixson had two disputes at a local bar during which he
represented himself as a deputy sheriff. Plaintiff PSOs found out when the
local police called to check his status. Still no one told plaintiffs that
Dixson had been terminated.
The PSOs began an investigation without informing anyone and found one
registration number belonged to a different individual, and the employment
at the VA was actually two years of being a patient at the VA. When
terminated for their unauthorized investigation, the PSOs claimed they were
concerned Dixson was committing the crime of impersonating a police officer
and they were thus performing an important public duty. The court disagreed
because they were not investigating the bar incident, and believed Dixson
was still employed (PSOs are special deputies of the sheriff). The court
granted directed verdict for the employer, finding termination of the PSOs
was lawful. Brown v. Board of Educ., 207 Or App 163 (2006).
Significant Damages Awarded to Corrections Officer for Harassment by
Prisoners.
Freitag, a female corrections officer at Pelican Bay State Prison, brought
complaints to her superiors of sexual harassment (including lewd behavior)
by male prisoners. Throughout 1998 and 1999, she made several complaints,
including write-ups in the prisoner files, reports to supervisors, and
eventually contacting her Senator. Prison officials disregarded, even threw
away, her disciplinary reports regarding the prisoners, and instead began
investigating Freitag due to inconsistencies in reports. She was ultimately
terminated for falsifying reports regarding disciplinary measures used by
male coworkers. The Ninth Circuit upheld a jury verdict that the state
correctional department failed to promptly and appropriately investigate and
respond to Freitag’s harassment complaints. Finding a hostile work
environment and retaliation against Freitag under both Title VII and for
exercising her 1st amendment rights, the jury awarded $600,000 in
compensatory damages. Freitag v. Ayers, __F3d__, 2006 WL 2614120
(9thCir 2006).
Plaintiff Sanctioned for Destroying Evidence.
In this day of emails and computer records, both employers and employees may
get the urge to delete records that could potentially be troublesome at
trial. In Leon v. IDX Systems Corp., __F3d__ (9th Cir 2006),
the Court gave a clear message that such actions could prove costly. While
acting as the director of medical informatics with the employer, Dr. Leon
complained of financial irregularities. Employer placed Dr. Leon on unpaid
leave and sought to terminate him. Dr. Leon then filed retaliation and
whistleblower claims. However, after express instruction to preserve data on
his employer-provided laptop, which he was allowed to use while finishing
some audits, Dr. Leon wiped data from the computer. The court found Dr. Leon
very evasive when questioned. In response to his destruction of evidence, it
dismissed his lawsuit and sanctioned him $65,000. The federal courts have
imposed new requirements on the protection and production of electronic
evidence beginning November 1, 2006.
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