With social media taking over the way people interact with one another on a daily basis, it is almost a foregone conclusion that employees are going to do stupid things of their own on social media. For employers, it is sometimes difficult to find a nexus between an employee’s social media posts and the work they perform. Other times, the information posted impacts the employee’s work so directly that an employer must take disciplinary action.
In City of Minneapolis and Jesse L. Crofton, the veteran being terminated posted several anti-Muslim posts on his Facebook page, sometimes advocating for violence against the subjects of the posts, while employed as a police officer for the city over the course of several months in 2017. At the time of the posts, Mr. Crofton had been working for the Minneapolis Police Department (MPD) for three years. However, on his page, the veteran never described himself as a MPD officer, and did not even use his real name.
Mr. Crofton’s posts were noticed by an MPD Sergeant, who reported the posts to the Minneapolis Office of Police Conduct Review. The report was investigated, and presented to the Minneapolis Police Conduct Review Panel in September 2018. The panel found that the veteran had violated the Department’s Code of Ethics. After the finding, the file was sent to the MPD for discipline, but the veteran’s Loudermill hearing was held on July 14, 2020. Up until the date of the hearing, the veteran continued to perform full enforcement duties on behalf of the MPD. After the Loudermill hearing, the veteran was terminated.
It appeared that the employer faced an uphill battle to terminate the employee, based on its willingness to keep the employee working on the streets even after it was determined he’d committed serious misconduct. However, during his direct testimony, the veteran’s counsel alluded to a potential workers’ compensation claim the veteran made, as well as his mental ability to return to active duty as a police officer. Information was then brought forward that in November 2020, the veteran claimed he suffered a psychological injury in October 2020, months after he received his notice of termination and was taken off-duty.
Obviously this information took Arbitrator Miller aback, as the veteran’s statements that he wished to return to duty completely contradicted his endeavor to acquire workers’ compensation benefits. Arbitrator Miller stated, “This sudden reversal by Mr. Crofton casts serious doubt on his believability and credibility, as he purportedly had already suffered ‘psychological injury’ at the time of the VPA hearing.” With this, the arbitrator found a reasonable uncertainty that the veteran could actually return to work as an MPD police officer. At that determination, the arbitrator dismissed the VPA appeal for reinstatement, and the veteran’s employment was terminated.
There is a lot to unpack with this award. The employer obviously would have had a difficult time proving that, after three years of service following the investigation, that the veteran was unable to perform the tasks associated with an MPD officer. However, the arbitrator clearly took exception to the veteran’s lack of credibility during the hearing.
In employee terminations, it is incredibly important for witnesses to maintain their credibility throughout a hearing, and for advocates to point out issues with consistency that could lead to a determination a witness is not being truthful. If you, or your organization, are in need of assistance in having disciplinary decisions upheld, contact the Wiley Law Office, for labor representation experience that works.