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Are Public Employees Who Are Accused of Sexual Harassment Entitled to a Hearing?

In 2011, Denver's newly elected Mayor, Michael Hancock, asked Mr. McDonald to work for the City of Denver. Mayor Hancock orally promised Mr. McDonald employment for the duration of his term or terms of office. Mr. McDonald accepted and began working for the City on July 18, 2011, as Executive Advisor to the Mayor, Special Projects Manager. On March 8, 2012, Mr. McDonald was reassigned to work in the Department of Excise and Licenses as Executive Advisor to the Mayor, Manager of External Affairs. Ms. Wise was employed by the City of Denver as a police officer. Shortly after Mayor Hancock was elected, Ms. Wise began to serve on his security detail. Mr. McDonald interacted with Ms. Wise when he traveled with Mayor Hancock around Denver. Between September 2011 and March 2012, Ms. Wise telephoned Mr. McDonald on his personal cell phone at least forty-one (41) times, before and after work hours and occasionally recorded their calls. The pair exchanged Christmas gifts, attended church together, and Ms. Wise met Mr. McDonald's family. The last time they spoke was on March 14, 2012. On May 18, 2012, Mr. McDonald was informed that Ms. Wise had filed sexual harassment charges against him. On May 21, 2012, Mr. McDonald was informed that he could either resign or be fired due to Ms. Wise's allegations. Mr. McDonald requested an investigation and opportunity to defend himself against the accusations. Mr. McDonald's request was denied; he was not provided a hearing and the City fired him on the spot.

Both the Mayor and a City Representative told the press that Mr. McDonald was fired for "serious misconduct." Mr. McDonald applied for unemployment compensation benefits which the City opposed based on his termination for sexual harassment. Mr. McDonald has been unable to secure other employment and was informed by potential employers that his applications are being denied because of the reports that he was fired for sexual harassment.

Mr. McDonald filed a lawsuit against the City under 42 U.S.C. ยง 1983 and Colorado state law regarding breach of contract, violations of due process, and unlawful disclosure of confidential information. He also sued Ms. Wise personally for defamation. The district court dismissed all claims. Mr. McDonald appealed to the Court of Appeals for the Tenth Circuit. The Tenth Circuit found that allegations of sexual harassment against a public employee are stigmatizing to a person's reputation and good name which raises a constitutionally protected liberty interest entitling the employee to due process, typically in the form of a hearing before he can be terminated. The Court of Appeals affirmed the discharge of the property interest claim but reversed on the deprivation of liberty interest without due process and defamation claim, allowing those claims to proceed in the District Court.

Given that "zero tolerance" sexual harassment policies are on the rise, our office has seen an influx of clients with terminations like Mr. McDonald's; where by all objective accounts, the parties had a friendship but one friend then accused the other of sexual harassment. Without a hearing, investigation or opportunity to defend against the situation, employees are often terminated simply based on the allegations alone. While Mr. McDonald's case refers specifically to public employees, it could have interesting implications for employees in the private sector, as well.

If you were a victim of sexual harassment in the workplace or if you were terminated based on accusations of sexually harassing a co-worker, contact us at www.BryanKuhnLaw.com/ to discuss your legal rights.

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