Heroes Amongst Us

When I became the State President in June 2010, it was one of my greatest fears that one day I would be called upon to comfort a family when their loved one had been killed in the line of duty. That time has come, it is with great sadness that I had to carry out that duty on April 6, 2011.

Sgt. James Timothy Chapin went home to be with the Lord on Saturday, April 2, 2011. Tim was killed during the apprehension of a robbery suspect. A graduate of UTC with a B.A. in Criminal Justice, he had served with the Chattanooga Police Department for the past 27 years, prior to that he served with the U.S. Capitol Police Department during the Presidency of Ronald Reagan. Tim follows his grandfather and father in law enforcement. He held member-ships with the Rock City FOP Lodge #22 and the Fellowship of Christian Police Officers. He is survived by his wife, Kelle and children Nicholas and Allison. Tim also leaves behind his parents, Ralph and Linda Richards, two sisters, a brother, several nieces, nephews, great-niece and nephews, aunts and uncles.

I want to thank the members of Rock City Lodge No. 22 for all their assistance to the family, fellow law enforcement officers, the Chattanooga community and myself during this difficult time. We don’t think of ourselves as heroes… but the community does. When speaking to Tim’s father it was with tremendous pride that he told me the owner of the store where his son was killed had come to him and thanked him for his son’s sacrifice. He stated that without a doubt Sgt. Chapin saved the lives of everyone in the store that day.

Johnny Crumby, President

DISCRIMINATION and DISCIPLINE
HARASSMENT AND HOSTILE WORK ENVIRONMENTS

Brock Parks-General Counsel

I receive a lot of calls from officers across the State who claim to be the subject of a “hostile work environment” or are being “harassed.” Hostile work environments are actionable only in a very few circumstances. Specifically, “hostile work environment” claims are only actionable in three situations.

The first is a hostile work environment for sexual harassment. Under one scenario, the sexual harassment is known as “quid pro quo” meaning that an adverse employment action (demotion, suspension, termination, etc) is taken against an officer in retaliation for refusing a supervisor’s sexual advances, requests, or demands.

Another situation in which a hostile work environment can be created for sexual harassment does not actually require an adverse employment action but is created by the workplace environment.

Under this second scenario, the hostile work environment for sexual harassment is action-able for a pervasive and abusive work environment that is created based on upon sexual content such as the display of pornographic material, touching and grabbing, sexual re-marks or jokes, and the physical interference with movement. In order to state a claim for hostile work environment under this second scenario, it must be shown that the conduct was so severe and pervasive that a reasonable person would find the environment objectively hostile and the accuser, subjectively, found the conduct severe and pervasive.

The third situation for an actionable hostile work environment is the creation of a work environment that is hostile to a particular “protected class” of employees based upon race, sex, national origin and the like. In a relatively recent decision, the Sixth Circuit Court of Appeals held that the “locker room” atmosphere in a business was hostile to women. Prevalent use of foul language, reference to customers of the business as “bitches, whores, sluts, dykes, etc.”, and graphic discussions of sexual liaisons created a hostile work environment of the protected class, that being women. The court specifically held:

Even though members of both sexes were exposed to the offensive conduct in the…office, considering the nature of the patently degrading and anti-female nature of the harassment, it stands to reason that women would suffer, as a result of the exposure, greater disadvantage in the terms and conditions of their employment than men.

The third situation for an actionable hostile work environment is the creation of a work environment that is hostile to a particular employee in retaliation for engaging in protected activity. These types of scenarios occur when an individual is treated differently for actions such as reporting legal violations (whistle-blower type claims), or for filing a Workers’ Compensation claim, or complaining about discrimination, etc.

In the actions for “quid pro quo” sexual harassment and retaliation claims, there must be some adverse employment action; however, the level of adverse action required is considerably different. For “quid pro quo” actions, the adverse employment action has been defined as a “materially adverse change in the terms and conditions of employment because of the employee’s conduct.” Essentially this standard refers to a disciplinary action, firing, material loss of benefits, etc.

On the other hand, for a claim of retaliation, the United States Supreme Court has lowered the standard of adverse employment action to include actions “viewed by a reasonable person in the employee’s position as materially adverse, but not necessarily ultimate or adverse employment actions.” These actions can include change of job duties, schedule changes, etc.

In summary, while officers may feel as if they are being “harassed” or that there is a “hostile work environment,” the reality is that if the conduct from the supervisors or co-workers does not fall into one on the three scenarios listed above, it is not an actionable.

DISCIPLINE
OFF-DUTY CONDUCT/FACEBOOK/SOCIAL NETWORKING ISSUES

While I have stated in multiple presentations that social networking cites continue to get officers in trouble, as I write this article I routinely still receive calls from officers who find themselves facing sanctions for such conduct. Below are some statistics regarding employer use of social media:

12% of employers monitor internet as part of their business including blogs;

44% of employers use social networking sites to examine job candidates;

39% of employers have looked up profiles of current employees on social networking sites

In fact, in 2010 a private company began marketing to employers a software called Social Sentry, which will automatically monitor employees’ Face-book and Twitter accounts for $2 to $8 for each employee. Because nearly every law enforcement agency maintains a policy related to “conduct unbecoming an officer/employee” postings on social network sites can provide grounds for discipline. Many courts have held law enforcement officers to this higher standard of conduct for actions both on and off duty.

There are several issues involving off-duty conduct and social network websites. One such issue involves injury leave, sick leave, and Workers’ Compensation claims. If an officer makes a claim of illness or injury, and then proceeds to post photos or comments on his/her social media page demonstrating a rafting trip, a day at the lake, a softball game, etc., then the officer is most certainly going face termination for untruthfulness at the least. Even if not posted by the officer, a “friend” can post a statement or photo related to an officer that could result in a disciplinary charge.

Another issue related to off-duty conduct and social media sites deals with personnel issues such as inaccurately representing educational history, employment history, inappropriate public postings, “friends” lists, etc. Defamatory comments about supervisors or co-workers, as well as unauthorized disclosure of law enforcement-related information, can lead to departmental charges. While some of these postings may not be intended to actually cause harm or damage to reputation or investigation, the fact that they are published in a public domain can give rise to sanctions against the officer.

Finally, as it relates to off-duty conduct and social media, criminal defense attorneys now utilize social media sites to obtain information about officers in attempt to discover any information that might be used to discredit the officer in court. The public, including judges and jurors, certainly hold officers to a higher standard in their conduct. As such, defense attorneys may try to use any information they can gather from an officer’s social media page in an attempt to paint the officer in a bad light.

A local police detective recently stated that he utilizes information on social media websites to gather evidence against persons suspected of a crime. Officers should also be aware of the potential for incriminating information or photos on their personal social media pages and delete or secure them appropriately. As mentioned above, it does not necessarily have to be the officer who posts something on his/her page that raises a red flag; it could just as easily be friend or someone intent on causing trouble for the officer.

Brock Parks is an attorney at Hall, Booth, Smith & Slover, PC and serves as General Counsel to the State FOP Lodge.

Johnny Crumby, President