Extraordinary Employee Misconduct: Hitting on Arrestees!
By Fiona W. Ong - Shawe Rosenthal LLP
January 9, 2019
In my occasional series on extraordinary employee misconduct, I was both shocked and amused by a case involving a trooper who was fired after he hit on a female motorist after arresting her! While he was on a last chance agreement for (wait for it…) hitting on another female motorist after arresting her! I mean, I know the dating scene can be rough, but this really does not seem like a good dating approach.
In this case, Johnson v. Ohio Dept. of Public Safety, the trooper pulled over and arrested a female motorist for DUI. During the stop, he told her he would take her to a nearby Waffle House, where they made “fantastic waffles.” A month later, he stopped her again – without probable cause and without radioing the stop to his post, as required by Highway Patrol policy. During this second stop, the trooper told the woman that he liked her, and he apologized for not coming back to take her to the Waffle House. Although she said she was dating someone, he offered to meet up with her at a casino and gave her his personal cell phone number – directing her to write it down in a secret location where others would not see it.
This budding romance was cut short by a concerned citizen (the woman’s boyfriend, maybe?), who reported this interaction. The department investigated, and found the trooper to have violated several policies, including “Conduct Unbecoming an Officer.” (No argument here). In lieu of termination, he was placed on a last chance agreement that included: suspension without pay; termination if he engaged similar conduct; a waiver of the right to pursue legal action against his employer; and a two year effective period at the end of which, if he did not violate the agreement, it would become null and void, and removed from his record. That all seems pretty reasonable, right?
Apparently not for the hot-blooded trooper. Approximately 18 months later, he pulled over another (allegedly) drunken female motorist. He arrested, searched and handcuffed her before taking her to the police station. When she was released, he insisted on taking her home (although she had arranged another ride) and, in violation of departmental policy, failed to turn on his in-car camera. Once they got to her house, he radioed that he had left the scene. In fact, he did not. He spent at least a half-hour inside her house – and we don’t know what they were doing. And he later texted her from his personal cell phone. All of this was revealed when another concerned citizen made a complaint.
It is no surprise that the trooper was terminated for violating his last chance agreement. The surprise is that he then sued the department for race discrimination! He argued that a white trooper (our amorous trooper is black) was treated more leniently for similar misconduct. The white trooper had been accused of seeking to “friend” citizens he encountered during traffic stops, but those accusations were unsubstantiated. He was counseled to avoid any such conduct, but, three years later, attempted to “friend” another woman whom he had stopped for speeding. He was suspended for a day – not terminated.
The court, however, found that the white trooper was not similarly situated to the black trooper – his initial offenses were unsubstantiated (unlike the black trooper’s initial misconduct) and, more critically, the white trooper was not on a last chance agreement that specifically provided for termination for any further such conduct. Thus, the contention that the white trooper was treated better than the black trooper for similar misconduct was without merit, and the black trooper’s race discrimination claim failed.
Now, I understand that people often meet their significant others through work. But there have to be better ways to make friends and get dates than by arresting them!
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