Monday, November 16, 2009
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C.A. Upholds Firing Over ‘Accidental’ Pop-Up Images
By STEVEN M. ELLIS, Staff Writer
The Fourth District Court of Appeal on Friday upheld a Riverside County city’s decision to fire an employee who claimed that pop-up images of male genitalia and nude or partly-clothed women on his work computer screen appeared accidentally.
In an unpublished decision, Div. Two rejected the man’s argument that the images occurred due to spam e-mail, and said the images and a screensaver displaying bikini-clad women gave the city of Banning a basis to conclude he violated city policies on harassment and computer use.
The city fired Rashpal Brar from his position as assistant public works director with its electrical utility in 2005 after receiving complaints about the images, even though covert surveillance of Brar’s computer showed no history of visits to pornographic websites.
Although none of the images displayed people engaged in sexual conduct, six employees—both men and women—testified that the images made them uncomfortable and were inappropriate in the workplace.
They described a screensaver featuring women like those in Sports Illustrated’s swimsuit issue, and pop-up advertisements for penile enlargements and images of topless or partially-clothed women. They also said that Brar was known around the office as “RP” or “real pervert.”
The city’s public utilities director fired Brar after finding he had intentionally accessed and displayed “sexually explicit and pornographic material” creating “a hostile workplace…an uncomfortable and sexually-charged environment for the other employees in the department.”
The utility’s information systems coordinator told a private investigator hired by the city that it would usually require several steps to access pornographic pop-ups but that viruses could cause unsolicited e-mail, and that an inexperienced user could inadvertently access improper material by clicking on a hyperlink in the e-mail.
However, the investigator concluded Brar had violated the city’s policy against harassment and had been involved in accessing adult websites, and that he had violated city policy by excessive personal use of the Internet.
She noted that the information systems coordinator—who removed pop-ups from Brar’s computer in 2002 and installed a filter to prevent them—told her that Brar was “very concerned” because the links he accessed were “hard core pornography,” and said Brar told him to “get this smut off my computer.”
Brar requested an advisory arbitration hearing and the arbitrator issued a recommendation in his favor, concluding there was not sufficient evidence that Brar intentionally displayed the images, excluding the screensaver. The arbitrator said that the screensaver was inappropriate, but not pornographic, and that the city should have counseled Brar before terminating him.
The city manager rejected the arbitrator’s decision, finding that Brar’s use of the screensaver supported a claim of sexual harassment.
Brar challenged his discharge, but Riverside Superior Court Judge Douglas E. Weathers ruled that the termination was justified. Weathers held that the manager properly relied on the private investigator’s report and that the weight of the evidence supported findings that Brar intentionally accessed and displayed sexual images on his computer and caused discomfort to his coworkers.
The Court of Appeal agreed in an opinion by Justice Barton C. Gaut, who wrote that the court could not substitute its discretion for that of the city utility.
“Taken altogether, Brar’s violation of city policies concerning harassment and computer were all relevant circumstances in deciding the level of discipline, especially when his conduct could expose the city to liability for sexual harassment claims, causing ‘actual or potential harm to the public service,’ ” he said.
Justices Thomas E. Hollenhorst and Art W. McKinster joined Gaut in his opinion.
The case is Brar v. City of Banning, E045416.
Copyright 2009, Metropolitan News Company