Tag Archives | workplace investigation

Seventh Circuit refuses to expand anti-retaliation protection to employees who merely “participate” in a workplace investigation

By on October 25, 2010 in Our Blog

In the recent case of Hatmaker v. Memorial Medical Center, the Seventh Circuit held that an employee’s participation in an internal investigation was not protected activity under Title VII.  The statute’s retaliation provision protects employees from retaliation when they oppose unlawful activity (under the provision’s “opposition” clause) or when they participate in Title VII proceedings (under the “participation” clause).  

The plaintiff in Hatmaker complained about her supervisor’ ability to work with women.  Accordingly, the employer launched an internal investigation.  During the course of the investigation, the plaintiff made disparaging remarks about her supervisor, calling him a “good ole boy” and, as such, inherently sexist.  She also compared his workplace conduct to Don Imus in the Rutgers basketball debacle (where Mr. Imus referred to the members of the women’s team as “nappy headed hos”).  The investigation did not substantiate the allegations and concluded there was no hostile work environment (though the plaintiff never used this term).  Subsequently, the plaintiff was suspended for thirty days to give her a chance to put her negative feelings about her supervisor behind her.  Since she did not, she was eventually fired.  She then sued under Title VII, alleging she had been retaliated against for participating in an investigation.

The Seventh Circuit noted that while the plaintiff “participated” in an investigation, the investigation was “purely internal.”  It held that Title VII’s reach extends only to formal investigations, such as those initiated with the EEOC.  In addition, the court found that the plaintiff was not terminated for her participation, per se, but for comments she made which, in her employer’s estimation, displayed poor judgment.  The court went on explain that a complainant who engages in misconduct — such as lying during the course of the investigation or even filing a baseless charge — is not immune from disciplinary action under Title VII.

The decision stands in contrast to the 2009 Supreme Court case of Crawford v. Metro. Gov’t of Nashville & Davidson County, Tenn., which upheld the retaliation claim of an employee who participated in an employer’s internal investigation into a co-worker’s claim of sexual harassment.  (See our earlier post about the case).  The Crawford plaintiff shared her own experiences of harassment at the hands of the accused, and was subsequently terminated.  The high Court held that under the opposition clause of Title VII’s retaliation provision, the plaintiff was protected.

I am not quite sure how to reconcile Crawford with Hatmaker.  While the Crawford plaintiff relied on the opposition clause, the Court’s holding involves the fact that she participated in an investigation.  Moreover, while the Hatmaker plaintiff primarily relied on the participation clause, she did invoke the opposition clause too, to no avail.  Reading the decision, it seems that the Seventh Circuit really disliked the plaintiff’s statements about her supervisor and found her conduct in complaining reprehensible.

So what’ the moral of the story for employers?  In the Seventh Circuit, at least, participating in an internal investigation does not render an employee bulletproof.  I still urge caution in meting out discipline to employees who complain or who participate in internal investigations, as retaliation claims have a way of coming back to bite employers.  The Crawford  plaintiff, as just one example, won a jury verdict of 1.5 million dollars when she eventually got to trial following her Supreme Court battle.  If in doubt, consult with counsel.  Despite the employer’s victory in Hatmaker, this area is still a legal minefield.

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Getting a sense of a corporation’s culture: the job of every investigator (or, ruminations during a 7 hour layover in Dallas)

By on October 19, 2010 in Our Blog

As I sit in the Dallas/Fort Worth airport for the fifth straight hour (just two and a half more to go before I board a plane for home), I find myself thinking about the corporate culture I have been immersed in for the past couple of days.  It’s a unique one, to be sure, and to do my job as an impartial, third-party investigator well, one that I need to be familiar with.  

“Corporate culture” is a frequently heard buzzword.  While it may sound vague and fuzzy, it actually carries a lot of substance.  Some questions that will help discern a particular culture: is a particular place of employment full of “lifers,” employees who have been with the company for decades?  How hierarchical is it?  Does leadership interact with the factory floor (or its equivalent)?  How do people address each other?  Are birthdays and other milestones acknowledged?  Who cares, you may wonder?  Here is why I do.  To assess allegations of managerial wrongdoing in a comprehensive and meaningful way, an investigator should consider the context.  I don’t mean that sexist behavior should be tolerated in, say, a trucking environment.  I’m referring to a more subtle kind of context.

An investigator should get to know the culture well enough to see what’s not being said, in addition to what is.  This takes a lot of practice, a little bit of skill, and the ability to step into the shoes of various witnesses.  So that is what I set out to do, each and every time I begin a new investigation.     

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Thorough investigation saves employer’s day in court (again)

By on October 18, 2010 in Our Blog

Late last month, the Third Circuit Court of Appeals upheld the dismissal of Deborah Wood’s discrimination, hostile work environment, and retaliation claims.  Wood was a systems analyst at the University of Pittsburgh who was laid off, along with sixteen other employees, due to a decrease in funding.  She promptly sued the University, alleging (among other things) that its response to her internal complaints had been inadequate.  The court took the opposite view, however, characterizing the University’s response “extraordinary.”

A couple of years prior to her discharge, Wood complained that someone was tampering with her computer.  The University launched three separate investigations into the matter.  First the supervisor investigated the allegations, with the help of the computer department.  Then, when Wood elevated the complaint to HR, HR instigated a separate investigation.  Still not satisfied, Wood sought the assistance of the campus police, as she believed someone had broken into her office.  Again, an investigation was immediately commenced.  None of the investigations were able to substantiate Wood’s claims.

While it is certainly not essential for employers to conduct repeat investigations is the complainant is unsatisfied with the initial results, this case aptly demonstrates that courts look favorably upon employers who take action when confronted with employee complaints.  Make sure you know where to turn when an internal complaint arises (hint: Warren & Hays).

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Workplace investigations: to document or not to document

By on September 14, 2010 in Our Blog

In a word, yes.  But, unless you have a seasoned investigator who knows how to prepare investigation-related documentation as if she were preparing “Exhibit A” for a trial (because she very well may be), no documentation is better than bad documentation.  So assuming you have a good investigator and plan on asking her to prepare an investigation report, what should the report contain?  Obviously, the report should contain a detailed explanation of all steps taken during the investigation, witnesses interviewed, documents reviewed, etc.  It should also describe, in fairly thorough detail, factual conclusions and how they were reached.  But — and this is really important — investigation reports should never contain legal opinions or conclusions.  Why?  The role of the investigator is to make findings of fact.  The lawyers can determine the legal impact of those facts, at the appropriate time.  This is true even if the investigator is a lawyer.  

Consider a harassment investigation, for example.  The investigator finds that the complainant’s allegations are substantiated.  The conclusion, then, should be couched in terms of the employer’s policy.  Thus, “the harassment policy was violated,” rather than “the accused committed harassment.”  With the former conclusion, the employer can still successfully defend a subsequent harassment claim by arguing the conduct did not rise to the level of illegal harassment.  Such an argument will be much harder to make with the latter conclusion.  In the end, it all comes down to having a skilled investigator (and having policies and trainings that will allow the employer to defend itself in the event of litigation).

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Bad investigation supports punitive damages claim

By on July 20, 2010 in Our Blog

The Sixth Circuit recently upheld a jury award of over a million dollars to a plaintiff who had been employed for a mere five weeks.  In West v. Tyson Foods, Inc., the plaintiff claimed she was sexually harassed by a number of male co-workers.  Per her employer’s policy, she complained to her immediate supervisor.  The supervisor’s initial response was that she should not take offense, as “that’s just how they treat their women over there.”  He further assured he she was “hot.”  He then told her he would look into the matter and specifically asked her not to go to HR.  The only thing he did was to “observe” the situation for a few days.

After the plaintiff was followed to her car one night, she decided not to return to work and was terminated for job-abandonment.  She then had an exit interview with an HR manager, and she disclosed the harassment.  The manager promised to investigate, but did nothing.  Tyson finally conducted an investigation after the plaintiff filed an EEOC charge.

The investigator did not interview one of the named harassers, a co-worker to whom the plaintiff had complained to at the time of the alleged harassment, or the manager who conducted the exit interview.  The investigator simply sent the witness statements to Tyson’s EEO specialist who, in turn, did nothing except respond to the EEOC charge.

A jury awarded the plaintiff $1.2 million, including punitive damages, and the Sixth Circuit upheld the award.  Tyson’s response to the plaintiff’s internal complaint was “woefully insufficient,” according to the court.  No action was taken to stop the harassment; the investigation was conducted too late and was incomplete, at best, and; no disciplinary measures were ever imposed on the perpetrators.

On appeal, Tyson argued the trial court erred in admitting evidence of the investigation at all, as it was conducted post-termination.  But the Sixth Circuit disagreed, finding the details of the investigation were relevant to show Tyson’s “reckless disregard” of the plaintiff’s Title VII rights, thereby supporting the punitive damages award.

This case is a textbook example of how not to respond to an internal complaint of harassment.  It’s also a good reminder that having an anti-harassment policy is not enough.  Supervisors must be trained on how to deal with harassment situations that arise.

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So the investigation is over. Now what?

By on February 8, 2010 in Our Blog

Suppose you have successfully responded to a workplace complaint by conducting a prompt and thorough investigation and reaching findings of fact (or, better still, you outsourced the investigation to Warren & Hays).  The investigation found an employee violated the company policy prohibiting harassment or discrimination.  What is your next course of action?  A notation in the personnel file?  Yes, that’s most likely necessary, but not always sufficient.  One-on-one “sensitivity” training can be an excellent resource.

It sounds good, but what is it, exactly?  The offending party meets with an experienced third-party trainer.  During the course of the meeting, the trainer reviews the company policy, provides a detailed overview of the legal landscape and how the offender’s actions fit into it, instills the fear of God in the offender (by raising the specter of such terrors as personal liability), and coaches the offender on how to best avoid similar situations in the future.  The coaching portion of the session can provide the most helpful long-term gains, both for the employee and the employer.  Murky areas such as management style, workplace communications, unconscious bias, and increased sensitivity are explored in an interactive way.  The result is often a better informed, more aware supervisor who is eager to hone her new-found skills.  

I often hear from the skeptical client, “but can people really change?”  It is true that deeply-held biases and ingrained attitudes can be hard to shift.  But it is just a true that behavior in the workplace can be altered by training, coaching and, yes, scaring offending employees.

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Sometimes it pays to hire an outside investigator

By on December 17, 2009 in Our Blog

investigatorHow do you know when a workplace investigation needs an outside investigator? While we’d love to say “always,” many investigations can be handled internally by competent HR personnel or in-house counsel. There are, however, red-flags that indicate when an outside investigator is necessary:

  • The government is involved (EEOC, SEC, DOL)
  • There is a chance of a lawsuit or government investigation
  • More then one employee complains about the same serious problem (e.g. systemic racism)
  • The accused is a high-ranking employee
  • The complaint is subject to media attention
  • The complaining employee has hired a lawyer, filed a suit or a charge with a government agency (EEOC, OSHA, Wage and Hour Division)
  • The accusations are extreme (allegations of rape, assault, threats, theft)
  • There is a heightened need for objectivity and impartiality

In these situations, the benefits of an outside investigator are many: knowing how to prepare a report that will likely be evidence or a defense in litigation or a government investigation, less interruption to business, more effective interviews, and the perception that the company is taking the complaint seriously.  

When choosing an outside investigator, ask for credentials, references, whether he/she has served as a witness, and examples of prior investigations and the results.

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