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Saying You Didn't Do Your Job Doesn't Violate Workers' Due Process

By Casey C. Sullivan, Esq. on April 24, 2015 | Last updated on March 21, 2019

Everyone makes mistakes. Some folks have one too many drinks before getting behind the wheel. Others fail, allegedly, to follow proper procedure when testing DUI blood draws, leading to retesting 1,700 samples. When Colorado's state toxicology lab had to do just that, they laid the blame publicly on one young lab tech, Mitchell Fox-Rivera.

After he was fired, Fox-Rivera claimed that the government lab improperly impugned his reputation, denying him due process. The Tenth Circuit was less sympathetic to his claims of scapegoating, finding that the comments made, which accused Fox-Rivera of not doing his job properly, did not rise to the level needed to implicate his due process liberty interests.

One Big Mess in the State Toxicology Lab

A Colorado state toxicology lab suspended all blood-alcohol and drug testing in 2013, after defense attorneys revealed an internal report questioning lab results. In addition to requiring retesting, the botched results compromised many DUI prosecutions. An internal investigation laid the blame on Mr. Fox-Rivera and statements to the press by lab employees accused him of unsatisfactory performance and failing to follow proper protocols.

Some were suspicious of the lab's "one bad apple" defense, while Fox-Rivera publicly argued that he could not be responsible for the errors since, as an entry level employee, all of his work was supposed to be checked by supervisors.

Saying You Didn't Do Your Job Isn't Bad Enough

Fox-Rivera sued, alleging that the lab had deprived him of due process. According to Fox-Rivera, his firing and the subsequent statements deprived him of his liberty interest in "his good name and reputation as they related to his continued employment."

According to the court, the state employees at most accused Fox-Rivera of failing to do his job properly. Like simple charges of negligence, these accusations don't implicate a protected liberty interest. Whether Fox-Rivera performed his work properly or not does implicate his good name or reputation.

The Tenth Circuit had previously allowed due process complaints to move forward when plaintiffs alleged unfounded charges of dishonesty or immorality. The comments made about Fox-Rivera, however, did not stretch that for. Nor did they even allege "serious misconduct," which may implicate a liberty interest under a broad reading of the circuit's precedents.

For a government worker's liberty interests to be implicated by comments surrounding their firing, much more than "you didn't do your job," will be needed.

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