California HR

‘Killer’ Statement Fatal to California Investigator’s Career

by Elizabeth J. Boca, Epstein Becker & Green, P.C.

On September 8, 2016, the California Court of Appeal for the Fifth Appellate Circuit addressed the issue of whether an employee’s single statement, claimed to be made in jest, constituted good cause for termination of his employment.

Background

Samuel Merenda worked for the Office of the Riverside County Public Defender (OPD) for 9 years as an investigator. He previously served in the Air Force and worked for the San Bernardino County sheriff for 20 years. As an investigator, his duties included locating and investigating witnesses, preparing written reports, and testifying in court on behalf of the OPD.

Merenda prepared two types of reports:

  1. Interview reports, which contain factual information from a witness; and
  2. Confidential memoranda, which include his opinions and impressions.

 

The interview reports may be disclosed to the district attorney (i.e., the opposing side), but the confidential memoranda aren’t the subject of disclosure.

Merenda’s ‘Killer’ Joke

Merenda was terminated from his employment after he wrote a confidential memorandum that contained the concluding sentence: “Let me know if you want an ‘interview’ report and I’ll get you one, minus the confession.” Essentially, this inferred that Merenda was offering to write a new report omitting evidence damaging to the defense. Merenda later stated that he meant this to be a joke.

This memorandum pertained to the OPD defense of Juan Coronado, who was charged with murder. Merenda was assigned to work on the defense of Coronado’s case, which included interviewing witnesses. One of the witnesses told Merenda that Coronado had allegedly confessed. However, Merenda didn’t believe the witness was credible.

Merenda then prepared a confidential memorandum to the public defender that summarized his interview, included the alleged confession, and concluded, “Let me know if you want an ‘interview’ report and I’ll get you one, minus the confession.” Merenda was removed from Coronado’s case because of that line. Thereafter, the memorandum was inadvertently disclosed to the district attorney, and the OPD was removed from the defense of Coronado.

Merenda’s Termination

Since Merenda was a member of a union, good cause was required for his termination. This is different from most California employees, who are presumed “at-will” employees. The OPD conducted an investigation, which included interviewing Merenda and witnesses. Merenda also participated in the union grievance process, including a hearing required under case law.

Merenda admitted that his statement lacked judgment and damaged his credibility, but he claimed it was only a joke. He was eventually fired, and an arbitrator agreed with the OPD’s termination decision.

The case was ultimately presented to the appellate court, which was asked the following question: Did the single statement constitute good cause for Merenda’s termination?

Court Says Termination Was Appropriate

The case came before the appellate court because Merenda challenged the OPD’s decision to terminate his employment. Merenda alleged, among other things, that the penalty of termination was too harsh, noted he had no prior discipline and received positive work evaluations, and argued that the statement was a joke. However, the appellate court upheld the arbitrator’s decision.

The appellate court found that Merenda was inconsistent in his explanation that the statement was a joke. Moreover, regardless of the motives for the statement, his conduct damaged his credibility and that of the OPD by creating the perception that OPD investigators might manipulate or conceal evidence.

This, in turn, impaired Merenda’s credibility in Coronado’s case and every other case in which he might serve as an investigator. Thus, there was “good cause” sufficient for the termination of his employment. Laborers International Union of North America, et al. v County of Riverside (2016) E063886 (Superior Court No. RIC1410946).

Bottom Line

Use caution when terminating employees for a single incident. In this case, although the OPD prevailed, there could have been a different outcome if the facts had been different (e.g., if the statement didn’t directly affect Merenda’s ability to continue doing his job or affect the credibility of the employer). In any event, make sure to conduct an appropriate, documented investigation before making any firing decisions.

Elizabeth J. Boca is an associate in the labor and employment practice, in the San Francisco office of Epstein, Becker & Green. She is also a contributor to the California Employment Law Letter. Ms. Boca can be reached at eboca@ebglaw.com.