Davis v. The Board of

¶ … Davis v. The Board of Commissioners of Dona Ana County. This case is from New Mexico in 1999. At the heart of the case is an alleged sexual assault by a medical practitioner at a psychiatric facility. The hospital had hired the physician in question in part on the basis of a favorable recommendation from his previous employer, the County. The physician's employer had given strong recommendations that did not mention his reprimands for sexual assault. The case has bearing on the issue of giving employer recommendations.

Despite their value to human resource departments, there is cause in light of this case to curtail the practice because of the legal exposure it could cause. Legal Issue The legal issue at the heart of this case is the matter of employer recommendations. An employee of the Country, Frank Steele, had authored a recommendation for Joseph Herrera. The letter did not mention that Mr. Herrera had been reprimanded for sexual misconduct during the course of his two years at the County. Mr.

Steele was aware of this, and had at one point suspended Herrera without pay and demoted him. Mr. Herrera was facing a disciplinary hearing when he resigned. Just six days later, Mr. Steele authored the glowing recommendation that made no mention of Mr. Herrera's disciplinary issues. Mesilla Valley Hospital hired Herrera in part on this recommendation, and it was at that point that Herrera committed sexual assault against Mariah Davis, the plaintiff. At issue is the extent of the duty of care that Mr.

Steele owed to Mesilla Valley Hospital with respect to the letter of recommendation that he wrote on behalf of Mr. Herrera. Negligent Referral Following the assaults on Ms. Davis, it came to light that Mr. Herrera had faced disciplinary action for sexual misconduct at his previous position. It was held by the Courts of Appeals of the State of New Mexico that the County and Mr. Steele did owe a duty of care to MVH. They were obligated to provide a full and honest record of Mr.

Herrera's employment, including his disciplinary actions. There is a balance in law between negligent referral and defamation -- companies are concerned that if they reveal anything negative about the former employee that they might face suit from that former employee. Such a scenario would involve Mr. Herrera claiming that disclosing records of his discipline the County was defaming him and in effect rendering him unemployable. Negligent referral, however, involves almost the opposite -- failing to reveal material information.

The Davis v Dona Ana County case was preceded by a decision in 1997 in California Supreme Court which tested a similar situation, in this case involving a teacher who had sexually assaulted a student. The teacher was given a good reference, was hired again on the basis of that reference and committed another sexual assault, a situation that mirrors that of Davis. In that case, there were no evidentiary hearings for the teacher, meaning that technically the sexual assault allegations were hearsay (McCord, 1999).

In the Davis case, Herrera had resigned before the hearing could take place. Thus, it is difficult to determine whether negligent referral occurred here. Mr. Steele had not proven in an evidentiary hearing that sexual assaults had taken place, nor had Mr. Herrera been convicted in a court of law. For his part, Herrera had denied the allegations. Had Mr. Steele relayed those allegations to a prospective employer, he may have exposed the County to a defamation suit from Mr. Herrera since no allegation against Herrera had actually been proven.

Decision Hold and Court's Claim The Appeals Court reversed the lower court's decision. The court's claim is that "the plaintiff's allegations of negligent misrepresentation against Steele and Mochen state a viable claim for relief against the County. What this means is that the court sided with the plaintiff in this case. Steele owed a duty of care to Mesilla Valley Hospital to provide them with accurate information about Herrera. The glowing review that they provided in writing was not an accurate reflection of Mr. Herrera's employment with the Country.

Therefore, they breached their duty of care. Conclusion The Davis case.