Employee Can be Terminated for Failure to Cooperate in Investigation

In Cropsey v. School Board of Manatee County, Florida (2D07-5959), the Second DCA reversed a school board's decision to terminate an employee for failing to cooperate in an internal investigation. However, the reversal was based upon the following unique facts: (1) the employee was given twenty-four hours notice of the investigation; and (2) the employee did not cooperate upon the reasonable advice of counsel who did not have sufficient time to investigate the issue.

The ultimate conclusion based upon the facts aside, the Court adopted the law of many other jurisdictions that an employee can be fired for refusing to cooperate in an internal investigation. The court held:

Many adult citizens are aware that the Fifth Amendment protects a person from being compelled to testify in a self-incriminating manner. But a school principal is not a police officer, and an employer, including a government agency, can often justifiably fire an employee who refuses to participate in an investigation into matters that may seriously affect the employer.

In this setting, the case law has evolved to provide that "a government employee who has been threatened with an adverse employment action by her employer for failure to answer questions put to her by her employer receives immunity from the use of her statements or their fruits in subsequent criminal proceedings." Sher v. U.S. Dep't of Veterans Affairs, 488 F.3d 489, 501 (1st Cir. 2007). Such immunity arises because the government cannot use the threat of discharge to obtain incriminatory evidence against the employee. See Garrity v. New Jersey, 385 U.S. 493, 500 (1967).2 [2 These considerations are unique to the relationship between a public employer and its employee. See Uniformed Sanitation Men Ass'n v. Comm'r of Sanitation of City of New York, 426 F.2d 619, 626 n.3 (2d Cir. 1970).]

As a result of this automatic immunity, however, the employee may be disciplined or terminated for remaining silent in response to questions relating to the performance of employment duties. Gardner v. Broderick, 392 U.S. 273, 278 (1968). This is because the immunity attaching to any incriminating statements made to the employer renders unnecessary the employee's assertion of Fifth Amendment rights. See Sher, 488 F.3d at 502. Under these circumstances, the employee's silence on purported Fifth Amendment grounds is unprotected by the Constitution and may in fact provide a basis for termination.