Davis v. The Board of County Commissioners of Dona Ana County
Dr. Bobby Barrett
HRM510 Business Employment Law
October 22, 2014
In the case of Davis v. The Board of County Commissioners of Dona Ana County the problem was pure and simply the County Detention Centers decision to inexplicably give an former employee a letter of recommendation, misleading and giving the new employer an inadequate picture of the employees’ character and accomplishments with their company. The critical issue was the negligent referral that was given about the circumstances in which the employee left the detention center. Mr. Joseph Herrera was a mental health technician while employed at the detention center. There were allegations of sexual harassment of female inmates that were under his authority and an investigation ensued. The investigation exposed inappropriate conduct of Mr. Herrera, which deemed it appropriate that he undergo disciplinary action. A hearing was scheduled for the disciplinary action to be given, however that hearing never resulted. Before the hearing was able to take place, Mr. Herrera voluntarily resigned his position with the detention center. Upon his resignation, he requested of his immediate supervisor a letter of recommendation, the supervisor obliged and gave Mr. Herrera a shining recommendation of hard work and superb behavior. Mr. Herrera then went to Mesilla Valley Hospital (MVH) and applied for a position as a Mental Health Technician, he took that letter his prior supervisor had given and was hired based on that recommendation. Upon employment at MVH, employee Mr. Herrera sexually abused a patient. The patient when on to sue the Detention Center, Mr Herrera’s’ former employee, claiming they negligently misrepresented the character and ability of the prior employee. Had they given an accurate representation in the recommendation, MVH would not have offered the position to Mr. Herrera.
The decision of the court established that Dona Ana County Detention Center would be liable for negligent referral due to the supervisor’s recommendation of Mr. Herrera’s character and behavior while employed there. It is the duty of the recommending party to exercise good judgment when giving referrals. They “did owe a duty of care” to MVH when they elected to give the technician a recommendation (Walsh, 2010, p.149). Being that the immediate supervisor and or employer knew that there was a foreseeable risk to others, it should have been their duty to caution that company and give the accurate facts in the recommendation. Inexplicably omitting information of the upcoming hearing in that reference was negligent and the courts agreed.
The matter of whether or not there was confirmed abuse in the allegations played a minor role in this case. The fact that detention center discovered inappropriate conduct and were working towards disciplinary action is what mattered in this case. Though the report of sexual favors was not concluded, they did conclude that “questionable” and “suspect” behavior of Mr. Herrera did take place (Walsh, 2010, p.148). Plain and simple, it was the duty of the employer to not create a risk of foreseeable physical harm. Since the company concluded that they would take disciplinary action against technician to have him suspended without pay and be demoted and reassigned, it was their duty to report that. To recommend an employee to another company with that type of disciplinary action to ensue there must have been substantial evidence of the questionable and suspect behavior. Since the employer chose to give additional information about the employee other than the position, title, and whether or not that employee was re-hirable, they put themselves in a position of liability. Anytime you give an inaccurate picture that could be detrimental to others by not providing the complete
