A recent decision from the U.S. Court of Appeals for the Sixth Circuit upholding termination of a state trooper for “hitting on” female drivers during traffic stops and breaching his Last Chance Agreement highlights the importance for employers to document investigations into employee misconduct and the reasons for any resulting discipline – or non-discipline.
In Johnson v. Ohio Department of Public Safety, No. 18-4181 (6th Cir. Nov. 13, 2019), the Sixth Circuit affirmed summary judgment in favor of the employer on an African-American state trooper’s claim that he was unlawfully terminated because of his race.
The trooper was fired for inappropriate conduct with female motorists whom he pulled over. While arresting a female motorist for drunk driving, the trooper asked the woman out to a restaurant. A month later, the trooper spotted the same woman driving, pulled her over without probable cause, asked her out to a casino, and gave her his phone number.
After the Department recommended termination, the trooper signed a Last Chance Agreement (LCA), agreeing that he would be terminated for any further similar behavior. Subsequently, the officer pulled over another intoxicated female motorist, drove her home without activating his in-car camera, stayed at her home for more than 30 minutes after radioing his station that he was leaving, and later texted the woman from his personal phone. He was fired for violating the LCA. The trooper sued for unlawful discrimination under Title VII of the Civil Rights Act.
To advance his discrimination claim, the plaintiff compared himself to a white trooper who was investigated for befriending female traffic stop detainees, but received only a one-day suspension. The Sixth Circuit found the investigative records showed many differences between the two officers’ conduct that indisputably showed their conduct was not of comparable seriousness. For example, the Department could not substantiate an allegation that the white trooper tried to “friend request” female detainees on social media, so he was simply warned. Three years later, the white trooper talked to a female detainee about personal matters during a traffic stop and, later, while off-duty, sent her a social media friend request. He was suspended for one day.
An investigation confirmed the plaintiff’s first instance of misconduct, his infractions were committed while on-duty and in uniform, his interactions were with intoxicated women, and he went to one woman’s home. Further, the trooper had signed a written LCA. In contrast, the first allegation against the white officer was uncorroborated, he was off-duty when he sent his friend request, the women involved were not intoxicated, and he had not signed an LCA.
Documenting investigations and resulting levels of discipline or non-discipline is key. Employers cannot predict which employees will be named as comparators by another employee who is disciplined and files a claim. Well-documented investigations, including those that are inconclusive or result in minor or no discipline, can later help demonstrate indisputable reasons for differing levels of discipline for different employees. Further, detailed investigative files help witnesses recall important facts when they testify at depositions that take place years after the incident. The time taken to properly document investigations can benefit employers later.
Jackson Lewis attorneys are available to assist in workplace investigations and litigations.