In Facebook Case, Due Process Violation When Employer Fails To Comply With Own Procedures

Damond Harris is a police officer with the New Orleans Police Department. In January 2010, Harris engaged in a Facebook conversation with another officer, William Torres. Torres started the conversation by posting: “Thanks for the shots last night. Btw, You shouldn’t of cut your hair. Bowl haircuts are for boys. Oh, tell your ex g/f better not tell me s–––, because we went out after your break up. A.M. you are a douchebag.”

Harris responded as follows: “WOW!!! Damn. Will you steal a dyke’s girlfriend, stomp her like a german blitzkrieg, then the dykes get mad and now they are fighting over your caliente chorizo. Lmao what is this world coming to lmao.” Not content with the adequacy of this response, Harris later posted another comment: “ATTENTION!!!! All dykes. Keep your dyke girlfriend away from Will Torres cause he will turn her straight and have her smoking pole by nights end. Lol.”

Harris claimed he did not know that Torres was speaking of fellow officer Athena Monteleone, when Torres used the initials, “A.M.” in his January 2010 post. He also did not know that Torres had gone on a date with Monteleone’s ex-girlfriend. Harris later testified that he had known Torres for 15 years and that he was speaking generally as Torres has a reputation for turning “gay girls straight.”

Harris testified that he did not intend any offense to Monteleone, and that he, Torres, and Monteleone were all SWAT members at one time and became good friends. They had spent time in one another’s homes and engaged in teasing. Also, Harris admitted that part of his teasing consisted of calling Monteleone a “dyke,” noting that she teased him by calling him “gay boy” and “fag boy.”

Perhaps inevitably, Monteleone found out about the Facebook exchange and complained to the Department. After an investigation, the Department suspended Harris for four days. Harris challenged his discipline on due process grounds.

The Louisiana Court of Appeals agreed with Harris, and overturned the suspension. The heart of Harris’ due process claim was that his pre-disciplinary hearing was held on the same date he received notice of the hearing, giving him an inadequate opportunity to prepare for the hearing. The Court found that Harris, “as a classified permanent employee, enjoys a property right in, and is entitled to, his position. Persons whose rights may be affected are entitled to be heard; and in order that they may enjoy that right, they must first be notified. Correlatively, this right to notice and opportunity must be extended at a meaningful time and in a meaningful manner.

“Harris argued receiving notice of the disciplinary hearing date at the same time as the disciplinary hearing was not meaningful. By the plain language provided in the notice of the hearing date, the Police Department obviously agrees. The disciplinary hearing notification provides: “Appendix ‘A’ shall be issued to and signed for by the accused employee at least five (5) calendar days prior to the date of the hearing.” In this instance, the NOPD violated its own internal rules by providing Harris notice of the disciplinary hearing date on the same day as the disciplinary hearing. We find the notice provided in this case was not extended in a meaningful time and manner.”

Harris v. Department of Police, 2012 WL 4054872 (La. App. 4 Cir. 2012).