Employment Law Daily No rights violation for applicant denied police job after Google search revealed questionable conduct
Friday, June 17, 2016

No rights violation for applicant denied police job after Google search revealed questionable conduct

By Marjorie Johnson, J.D. An applicant for a police officer position failed to plausibly allege that he was denied due process and equal protection after a "conditional" job offer was withdrawn after a "Google" search revealed that he had a prior criminal conviction, engaged in litigation against a former employer, and omitted a former employer from his application. Dismissing the applicant’s claims with prejudice, a federal district court in Indiana found that he had no property interest in his prospective employment and failed to plausibly assert that the city discriminated against him based on "purely arbitrary classifications" with regard to their background investigation (Brooks-Albrechtsen v. City of Indianapolis, June 9, 2016, Pratt, T.). Not hired despite "conditional" offer. In September 2014, the applicant received a "Conditional Offer of Employment" from the Indianapolis Metropolitan Police Department (IMPD), after having successfully proceeded through most of the applicant screening process for a patrol officer position. However, when the Civilian Police Merit Board met in January 2015 pursuant to the screening process, it decided not to offer him the job. In the interim, it was discovered that he had a prior criminal conviction which had been sealed, had engaged in litigation against a former employer, and had omitted a former employer from his application. The applicant brought the instant action against the city, the county, the merit board, and three individuals alleging that the defendants discovered this information while "Googling" his name on the internet pursuant to a background check. He claimed that this was improper and that the merit board unlawfully used the information against him. Underlying all of his claims, he characterized his "conditional" employment as an "implied agreement" and contended that the merit board’s decision to reject him for employment was "arbitrary and capricious." Can’t sue merit board. At the outset, the court tossed his claims against the merit board since it did not have the capacity to be sued. Under Indiana law, a municipality is authorized to create a merit system for its police department upon request of majority of the department’s active members. In addition, the merit board was a division of the City of Indianapolis, created in accordance with state and municipal law. Thus, a suit against the merit board was analogous to a suit against the IMPD, neither of which could be sued. No property interest. The applicant also failed to allege a viable due process claim since he did not have a protected property interest in his prospective employment with the IMPD. In this regard, he had argued that he had an implied agreement based on his "conditional" offer of employment, verbal assurances, and the applicant screening process. As such, he contended that he was denied his due process rights when the merit board declined to offer him the job. In the context of prospective employment, the Seventh Circuit has held that "to establish a property interest, there must be a mutually explicit understanding between the parties." However, the applicant stated that he was offered a conditional offer of employment that was contingent upon the successful completion of a number of examinations, a background investigation, and approval by the merit board and other similar groups. As such, his claims rested on an implied agreement, which did not rise to the level of a property interest, especially in the context of public employment. NLRA claim excluded. The court also tossed the applicant’s claim that the defendants violated the NLRA by deciding not to hire him because of his "prior labor practices in regard to employment." Significantly, he alleged that he sought employment with the IMPD, which is a department within the City of Indianapolis and a political subdivision of the State of Indiana. Since the NLRA excludes "any State or political subdivision thereof" from its definition of covered employers, the defendants were not subject to suit under the NLRA. No equal protection violation. Finally, the court dismissed the applicant’s equal protection claim asserting that the defendants unlawfully discriminated against him "for engaging in past lawsuits as a plaintiff." Even if his "class of one" claim could proceed with regards to hiring in public employment (which the court indicated was unlikely), he failed to plausibly assert that the defendants discriminated against him based on "purely arbitrary classifications" with regards to their background investigation. Indeed, he acknowledged that a background investigation was one of several steps in the IMPD’s applicant screening process and noted that his conditional offer of employment was "contingent upon successful completion" of both the background investigation and approval by the merit board. His pleadings also indicated that the stated purpose and scope of the background investigation included statements that candidates "who have a history of unethical or immoral behavior will not be hired," and that candidates would be subjected to "an intensive background evaluation" that would include "past behavior and the choices you have made." Although he noted that the background investigation was part of the applicant screening process, he nevertheless contended that the merit board improperly considered that he had engaged in litigation against a former employer. However, even if the board did in fact consider his past litigation, such action could not plausibly be understood as arbitrary when viewed in the context of an "intensive" background investigation for a position of public trust, which expressly indicated that all past behavior, lawful and unlawful, was subject to evaluation.

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