Davis v. Doña Ana County: Negligent Referral in HR Law

Introduction

This paper examines the case of Davis v. The Board of Commissioners of Doña Ana County, a 1999 New Mexico decision. 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 based in part on a favorable recommendation from his previous employer, the County. That employer had provided a strong recommendation that made no mention of the physician's reprimands for sexual misconduct. The case has significant bearing on the practice of providing employer references. Despite the value that references hold for human resource departments, this case provides cause to reconsider — or curtail — the practice because of the legal exposure it can create.

Legal Issue: Employer Recommendations

The legal issue at the heart of this case concerns the nature and obligations of employer recommendations. A County employee, Frank Steele, had authored a recommendation for Joseph Herrera. The letter made no mention of the fact that Mr. Herrera had been reprimanded for sexual misconduct during his two years of employment with the County. Mr. Steele was fully aware of this history; he had at one point suspended Herrera without pay and demoted him. Mr. Herrera was facing a disciplinary hearing when he chose to resign. Just six days later, Mr. Steele authored a glowing recommendation that contained no reference to any disciplinary issues.

Mesilla Valley Hospital hired Herrera in part on the basis of that recommendation, and it was there that Herrera committed sexual assault against Mariah Davis, the plaintiff. The central question before the court was the extent of the duty of care that Mr. Steele owed to Mesilla Valley Hospital with respect to the letter of recommendation he wrote on Mr. Herrera's behalf.

Negligent Referral and the Duty to Disclose

Following the assaults on Ms. Davis, it came to light that Mr. Herrera had faced disciplinary action for sexual misconduct at his previous position. The New Mexico Court of Appeals held that the County and Mr. Steele did owe a duty of care to Mesilla Valley Hospital. They were obligated to provide a full and honest account of Mr. Herrera's employment, including his disciplinary history. There is, however, a recognized tension in law between negligent referral and defamation: employers are often concerned that disclosing negative information about a former employee may expose them to a defamation suit brought by that individual. In this scenario, Mr. Herrera could theoretically have claimed that disclosing his disciplinary record rendered him unemployable and constituted defamation.

Negligent referral involves almost the opposite problem — the failure to disclose material information. The Davis v. Doña Ana County case was preceded by a 1997 California Supreme Court decision that tested a similar situation involving a teacher who had sexually assaulted a student. The teacher received a positive reference, was hired again on the strength of it, and committed another sexual assault — a pattern that directly mirrors the facts of Davis. In that earlier case, there had been no evidentiary hearing for the teacher, meaning the sexual assault allegations technically constituted hearsay (McCord, 1999). In the Davis case, Herrera had resigned before any such hearing could take place.

This procedural posture makes it difficult to determine with certainty whether negligent referral occurred. 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. Herrera had, for his part, denied the allegations. Had Mr. Steele relayed those allegations to a prospective employer, he may have exposed the County to a defamation claim from Mr. Herrera, since no allegation had actually been proven. This dilemma — the risk of saying too little versus the risk of saying too much — is central to understanding why employer reference practices carry significant legal complexity.

Conclusion: HR Implications

The Davis case illustrates an important lesson for human resources departments. References are a valued component of the hiring process, but many organizations avoid providing them precisely because of the legal risks this case exemplifies. There are many forms that negligent referral can take, and any reference that is given must accurately reflect the individual's full employment history.

In this particular situation, because the allegations against Herrera had not been proven, Steele would have been better served by either refusing to provide a recommendation at all — citing organizational policy — or by noting that Herrera had been scheduled for a disciplinary hearing at the time of his resignation, without specifying the nature of the hearing, thereby avoiding the repetition of unproven allegations. Most organizations, however, should consider establishing a formal policy of declining to provide individual references altogether, in order to minimize the risk of negligent referral liability and to protect both the company and third parties from harm.

References

Mariah C. Davis, Plaintiff-Appellant, v. The Board of County Commissioners of Doña Ana County, Defendant-Appellee. Retrieved April 26, 2014, from

McCord, L. (1999). Defamation vs. negligent referral. Graziano Business Review, 2(2).