HOW TO CONDUCT A WORKPLACE INVESTIGATION Barry J. Waters, Esq. Murtha Cullina LLP One Century Tower 265 Church Street, 9 th Floor New Haven, CT 06510-1220 Tel. (203) 772-7719 Email: bwaters@murthalaw.com Jennifer A. Corvo, Esq. Murtha Cullina LLP CityPlace I 185 Asylum Street, 29 th Floor Hartford, CT 06103-3469 Tel. (860) 240-6055 Email: jcorvo@murthalaw.com March 2016
HOW TO CONDUCT A WORKPLACE INVESTIGATION I. INTRODUCTION Legal cases scrutinizing the quality of workplace investigations are numerous and growing. A recent American Bar Association subcommittee survey of Workplace Investigation cases included 184 pages of case summaries. Human Resources professionals cannot avoid the responsibility of conducting workplace investigations into employee complaints. These complaints range from informal allegations of offensive behavior, bullying, harassment or discrimination to formal, written complaints of criminal misconduct. The complaint may implicate a manager, coworker, vendor or customer. Investigations must begin the moment a complaint is registered. The judicial second-guessing of how a company handles an employee complaint is illustrated by the Ninth Circuit Court of Appeals decision in Galdamez v. Potter: Galdamez testified that she informed her superiors almost immediately after taking office in 1994 of customer harassment based on her accent and national origin. When Galdamez first complained of the harassment, Bogroff told her Willamina was a redneck town and that she was tough enough to deal with the treatment. Jackson testified that postmasters were expected to grin and bear racist remarks and harassment, at least up to the point where law enforcement involvement became necessary. These same supervisors also testified that they did not know whether they had any specific obligation to look into racial harassment, or special procedures for confronting it, as they did in the context of sexual harassment. This evidence suggests that the - 2 -
Postal Service s response to Galdamez s difficulties was limited at best. On the other hand, there was some evidence that Galdamez s superiors did respond, specifically by offering Galdamez a position in a town with a larger Hispanic community and by arranging for a diversity specialist to inquire into the situation. They did so, however, only in conjunction with imposing formal discipline against Galdamez. Weighing all the evidence, a reasonable jury could have found that the harassment was actionable, that management-level Postal Service employees knew or should have known about it while it was happening, and that they nonetheless failed to take steps reasonably calculated to end and deter it, at least to the extent such steps were within their power. 415 F.3d 1015, 1024-25 (9 th Cir. 2005) The breadth of the investigation required will vary widely. Our purpose is to provide you with practical guidance on how to conduct an effective investigation, based on the application of the legal requirements and common sense. A. WHY DO AN INVESTIGATION? 1. Weed out bad employees 2. Support good employees 3. Affirmative defense in harassment cases B. KEYS TO A PROPER INVESTIGATION 1. Neutrality 2. Independence 3. Rigor 4. Promptness - 3 -
C. AFFIRMATIVE DEFENSE THE INVESTIGATION AS EVIDENCE The United States Supreme Court in sexual harassment litigation has established that employers may escape liability for the improprieties of their employees by responding promptly to complaints of misconduct with an investigation followed by swift corrective action. In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Court held that, although employers are subject to vicarious liability for unlawful harassment by supervisors, employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment. To achieve this balance, the Court established an affirmative defense under which an employer may avoid liability and/or limit damages by showing that the employer exercised reasonable care to prevent and promptly correct any harassing behavior, while the employee unreasonably failed to avail herself of preventive or corrective opportunities provided by the employer. See Montero v. AGCO Corp., 192 F.3d 856 (9 th Cir. 1999) (affirming summary judgment for employer on the Title VII claim where company had policy prohibiting sexual harassment and acted to promptly address harassment complaint). But see Ogden v. Wax Works, Inc., 214 F.3d 999 (8 th Cir. 2000) (cursory investigation focused on complainant's performance, rather than harasser's conduct does not establish affirmative defense). The standard of liability set forth in the Court's decisions applies to all forms of unlawful harassment. - 4 -
Bowles v. Osmose Utilities Services, Inc., 443 F.3d 671 (8 th Cir. 2006), illustrates the problem Human Resources professionals have in initiating a timely investigation: You may not know about the complaint until very late in the day. Bowles worked on a utility pole treatment crew. He filed a lawsuit claiming a racially hostile work environment less than two months after he was hired. After trial, the court awarded him $20,000 in compensatory damages and $80,000 in punitive damages. He was also entitled to recover his attorneys fees. Bowles claimed that soon after he started working on the crew, the foreman who hired him peppered him and the other black crew members with racial insults. The Company responded that Bowles did not inform his foreman s supervisor of the foreman s racially offensive conduct until the day before Bowles filed his lawsuit. Bowles and fellow crew members testified that numerous complaints had been made about the foreman s conduct over a period of months, and the court credited their testimony -- and no one had investigated the complaints. When an investigation finally occurred, the Company credited the foreman s denial because the Investigator tended to believe that the foreman would not do the things he was accused of. In Massachusetts, companies face the additional problem that if any employee is sexually harassed by a supervisor, the employer is automatically vicariously liable for the conduct of its agent. College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. 156, 165 (1987). If the harasser is simply a co-worker, however, the employer will only be vicariously liable if it is notified of the alleged harassment and fails to take adequate remedial action. Id. at 167. In other words, the employee has the burden - 5 -
of establishing that the employer knew or should have known of the harassment and failed to take prompt, effective and reasonable remedial action. See also MCAD Sexual Harassment in the Workplace Guidelines III B & C; LeClerc v. Interstate Distribs. Div. of Hudson News Co., No. 97-02008, 2000 Mass. Super. LEXIS 607, at *17-18 (Mass. Super. Ct., Norfolk, Aug. 31, 2000); Messina v. Araserve, Inc., 906 F. Supp. 34 (D. Mass. 1995). In its Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, the EEOC advises employers to select an investigator who can conduct a thorough and impartial investigation and who has no stake in the outcome of the investigation. Potential candidates may include a member of the employer s human resources department, in-house counsel, or an outside, neutral third-party investigator. Regardless of the selection, the employer should select an investigator who can objectively gather and consider the facts without any pressures from the employer. Any potential or actual conflict of interest, such as the selection of an investigator with supervisory authority over key witnesses, may jeopardize the integrity of the investigation and open the employer up to liability. All investigators should be: 1) experienced in the skills required for interviewing witnesses and evaluating credibility; 2) be familiar with the employer s policies and procedures; and 3) have a general understanding of the legal standards applicable to the investigation. - 6 -
D. WHAT IS A REASONABLE AND EFFECTIVE INVESTIGATION? An adequate internal investigation can identify instances of wrongdoing, guide employment decisions regarding the wrongdoing, avoid or minimize employer liability, reduce damages for the complainant, protect potential future victims of discrimination, and forestall injunctive relief. Investigators should identify witnesses and assemble relevant documentation, including personnel files, policies, procedures, payroll records, financial records, telephone records, e-mail, etc. 1. EEOC Guidelines The Equal Employment Opportunity Commission (EEOC) has published general guidelines for an effective investigation process in the EEOC Guidance on Vicarious Employer Liability For Unlawful Harassment by Supervisors, June 18, 1999. The EEOC emphasizes the need for a prompt, thorough, and impartial investigation. The guidelines include: questions to ask the complainant, the alleged harasser, and third parties; criteria for credibility determinations; and the process for reaching a determination. One expert in the field has stated that reasonable and effective investigations are fair (i.e., objective, impartial and consistent); thorough; prompt; accurate; appropriately confidential; and adequately documented. Effective investigators require analytical ability; knowledge of company policies and applicable substantive law; persistence; quickness; empathy; patience; perception; impartiality; sensitivity; and common sense. See Fuller v. City of Oakland, 47 F.3d 1522 (9th Cir. 1995) (criticizing sexual harassment investigation which failed to promptly interview accused, to - 7 -
corroborate accused's explanation, to interview witness for complainant, or to credit complainant's evidence); Hicks v. Pacific Bell, 60 Cal. Rptr.2d 685 (1997)(upholding summary judgment for employer in race discrimination termination based upon good faith investigation); Baker v. City of Oceanside, Cal. Sup. Ct. Nos. N56730 and N57926 (February 10, 1994) ($1.2 million verdict where employer's investigator failed to complete investigation and clear plaintiffs for over a year in violation of policy requiring investigation and notification of results in a timely manner). An effective investigation must be prompt, thorough, and impartial. The investigator must be someone who can be trusted to gather and consider relevant facts objectively and be trained in interviewing witnesses and evaluating credibility. An investigator's behavior and comments are of course subject to close scrutiny. Conduct suggesting retaliatory motives or bias will undermine the credibility of the investigation and defeat the Ellerth/Faraguar affirmative defense. An investigator interviewing the complainant or other witnesses should not attempt to convince the complainant to withdraw the complaint, express concern about the effect of the complaint upon the well-being of the company, or the serious effect on the prospects of the alleged harasser or his family. Reasonable and effective investigations are well planned and organized; they are conducted with sufficient resources to permit investigators to interview material witnesses and to pursue other relevant leads; they are documented with reports containing reasoned - 8 -
analysis and evaluation; and their conclusions are supported by the facts disclosed. 2. Elements of an Effective Investigation In determining the adequacy of an employer's response to a complaint of wrong-doing, certain practices appear repeatedly in the case law, establishing elements that are likely to qualify an internal investigation as adequate. The elements include: a. Responding promptly to the complaint Prompt and thorough interviews of the complainant, the accused, and all witnesses are essential elements of a sufficient response. b. Interviewing Witnesses In conducting interviews, effective investigative techniques include: appropriate documentation of interviews; understandable explanations and warnings to witnesses; use of open-ended questions (give the witnesses the opportunity to provide an open-ended narrative); and sufficiently exhaustive questioning i.e., follow-up of hints and contradictions to obtain all information known to each witnesses. See, e.g., Pollard v. E. I DuPont de Nemours Co., 213 F.3d 933 (6th Cir. 2000), rev'd on other grounds, 532 U.S. 843 (2001) (investigation inadequate where employer formed a list of questions answerable by yes or no, and when each employee denied knowledge of incidents, no further questions were asked). - 9 -
An investigator must interview: the complainant, see e.g., Foster v. Township of Hillside, 780 F. Supp. 1026, 1032 (1992) (investigator interviewed complainant about allegation and obtained statement). the alleged wrong-doer, who must also have a fair opportunity to respond, contrast Swentek v. USAIR, Inc., 830 F.2d 552, 558 (1987) (investigators confronted alleged harasser with complaint and questioned him about allegations). and any others who might have relevant information. See e.g., Foster, 780 F. Supp. at 1032 (investigator met individually with each woman whom alleged harasser supervised); Giordano v. William Peterson College, 804 F. Supp. 637, 643 (1992) (investigator interviewed twenty-one employees who may have known about alleged misconduct, obtaining statements from all witnesses with significant information). We highly recommend that the investigator obtain written statements from all witnesses, particularly the complainant and the alleged harasser/wrong-doer. c. Confidentiality For many years, it was a routine practice for investigators to instruct employees to keep all facts of an investigation confidential. This practice grew out of a concern for the privacy interests of both the accuser and the accused, and for the integrity of the investigation, by preventing the premature discussion among witnesses and potential witnesses. Today, neither the complainant nor the accused, nor any witnesses, should be told that their statements will be kept "off the record." The EEOC Guidance - 10 -
states that although complete confidentiality can never be assured, an employer should protect the confidentiality of harassment allegations to the extent possible. Information about the allegation of harassment should be shared only with those who need to know about it, and records relating to harassment complaints should be kept confidential. Id. at 15. Each person interviewed should be asked to respect the confidentiality of the investigation, particularly as it is unfolding. A confidential investigation is a more effective investigation and serves to limit the damage that could be done from inaccurate or unfair retelling of the story. However, no one should be told that they cannot talk about it. A statement that the complainant, the accused or even a witness is forbidden to talk about an investigation or interview may be misinterpreted as a chilling of their rights under Section 7 of the NLRA; to seek legal advice; or to file a complaint, or cooperate in an EEOC or other administrative investigation. In a recent NLRB case, Banner Estrella Medical Center, an employer s human resources consultant regularly asked employees, who filed an internal, work-related complaint, to keep the complaint confidential until the end of an investigation. The NLRB determined that these routine confidentiality instructions violated Section 7 of the National Labor Relations Act. The NLRB, however, did not express disapproval for all confidentiality instructions. The NLRB concluded that an employer can ask its employees to keep matters confidential as long as the employer could identify a legitimate business justification for the confidentiality that outweighs the employees Section 7 rights. A legitimate business justification - 11 -
may include the need to: (1) protect witnesses, (2) prevent the destruction of evidence, (3) avoid the fabrication of testimony, and (4) prevent cover up. The NLRB held that a generalized concern with protecting the integrity of the investigation is not a sufficient business justification for a confidentiality instruction. d. Anti-retaliation Protection Witnesses who are interviewed in the course of an investigation of a discrimination or harassment complaint are protected from retaliation, even if they did not initiate the complaint. See Crawford v. Metro. of Nashville & Davidson County, 555 U.S. 271 (2009) (holding [Title VII] anti-retaliation provision's protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during employer's internal investigation ). e. Relevant Inquiries While every investigation must be tailored to the particular facts, certain areas of inquiry often recur, thus investigators should consider covering the following areas with the witness indicated: Complainant Who committed the alleged harassment? What exactly occurred or was said? When did it occur? Where did it occur? - 12 -
How did it affect you? Has your job been affected in any way? How did you react? Do you know of any other relevant information? Are there any notes, physical evidence, or other documentation regarding the incident(s)? Who else might have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment? Did the person who harassed you harass anyone else? How would you like to see the situation resolved? Information relating to the personal life of the complainant outside the workplace would rarely be relevant and questions in that vein might be deemed harassing in themselves. Alleged Harasser What is your response to the allegations? Is it possible that the complainant misunderstood your words? Actions? Intent? That there is some truth to the complaint? If not, why would complainant lie? Do you know of any other relevant information? Is there anyone else who might have relevant information? Are there any notes, physical evidence, or other documentation regarding the incident(s)? - 13 -
Other Witnesses What did you see or hear? When did this occur? What did the complainant tell you? When did s/he tell you this? Describe the alleged harasser's behavior toward the complainant and toward others in the workplace. Do you know of any other relevant information? Are there other persons who have relevant information? f. Collect the documents Ask any and all witnesses if there are documents that support what the witness is saying. Consider doing a computer search with the in house IT Department or an outside expert. g. Evaluating Credibility Conflicting versions of relevant events are often presented by different witnesses, requiring an assessment of each witness' credibility. Experienced investigators evaluate credibility by considering and documenting observations relating to the following factors: Inherent plausibility: Is the testimony believable on its face? Does it make sense? Demeanor: Did the person seem to be telling the truth or lying? Motive to falsify: Did the person have a reason to lie? - 14 -
Corroboration: Is there other evidence (such as testimony by eyewitnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred or written documentation) that corroborates the party's testimony? Past record: Did the alleged harasser have a history of similar behavior in the past? A witness's credibility cannot be judged under any objective, rote formula, and no single factor is ever determinative, but an investigation will be deemed incomplete if it fails to follow-up with second interviews with the complainant and/or others after interviews or other evidence raises new questions. See College-Town, Div. of Interco, Inc. v. MCAD, 400 Mass. 156 (1987) (inadequate investigation absent follow-up interview with complainant after interview with alleged harasser). h. Reaching a Conclusion An investigation serves no purpose unless an evidence-based determination can be made that relies upon the interviews, documents, and any other evidence that has been collected. Often, consideration of statements by witnesses, including the complainant and alleged harasser, require assessment of the credibility of each witness. Discrediting any witness must be explained by contradictory credible evidence such as documents, other witnesses, inconsistent prior statements, or witness demeanor justifying the conclusion that a witness should not be believed. (The mere fact that no substantiation exists of a complaint regarding misconduct behind closed doors typically is not sufficient alone to discredit a witness absent additional explanation.) - 15 -
The investigator must be able to properly weigh the evidence and not exclude evidence which may contradict what the parties are saying unless there is credible evidence to discredit those witnesses providing the evidence. Furthermore, the investigator will have to explain why certain identified potential witnesses were not interviewed. A common failure is the investigator failing to interview the complainant's witnesses and only interviewing those favorable to the alleged harasser (particularly when he is in high management). After collecting all pertinent statements and documents, investigators must determine whether the allegations of the complaint are proved. A report should be prepared explaining the burden of proof used, summarizing the evidence, evaluating credibility, describing the corroboration for all findings, and explaining the reasonable, supportable conclusions reached. In addition to the report, retaining a complete and accurate record of the investigation demonstrates the prompt, reasonable, and effective action taken. Often, the direct contradictions between the statements of witnesses and a lack of documentary or eye-witness corroboration make it difficult to reach a determination. A credibility assessment may form the basis for a determination in such cases. If the evidence is simply too inconclusive to reach a final conclusion, your report should say so. However, you may nevertheless determine to implement ameliorative measures, rather than disciplinary ones, to address the concerns raised by the complaint that inspired the investigation. - 16 -
E. HOW YOUR INVESTIGATION WILL BE ATTACKED IN COURT 1. A common strategy to suggest that an investigator is not neutral or was in some way unfair is to represent that a party who participated in the interview was misinformed or unaware of the actual nature, scope, use and process of the interview. Avoid pre-judging the credibility of the claim. Even if you are skeptical, suspend disbelief until you have completed your investigation, then make credibility determinations where you are comfortable doing so. a. When preparing for and conducting an investigation, your primary focus should be on assuring the promptness, neutrality, rigor, and, to the extent possible, independence of the investigation, rather than the possible lines of attack. (i) The most credible investigation is the one conducted in the most professional manner, and with a reason behind each decision and choice made by the investigator. (ii) The circumstances, nature and content of investigations can be quite variable. Investigations are a compilation of choices or decisions by the investigator. An investigator must always be prepared to have their work disassembled, and each choice or decision held up for close scrutiny. A competent investigator should always have a rationale for their choices and decisions, and should always be fully prepared to answer the question "why did you do..." or the questions "why did you do...in that particular way." 2. Attacking the documentation prepared by the investigator: is it even- handed, neutral and complete? - 17 -
a. Subjective impressions do not belong in interview notes. b. Notes will vary dramatically from person to person. No two individuals will take the exact same notes as the result of the exact same discourse. The standard by which one should judge investigative note-taking is acutely practical: can the interviewer reconstruct what they were told, even after the passage of a considerable amount of time, by what is in the investigative file? c. Using this analysis, many investigators will choose to take notes during the investigation and then to promptly (a goal is to do so within 12 hours) go back through the notes, clarifying, "cleaning up" misspellings or punctuation, and clarifying those things that will not bear up when memory fades. 3. Attacking the choice of whom to interview, in what order, and what questions were and were not asked of the various interviewees. Also the reason that individuals were NOT interviewed: Document the attempts to reach a witness and the results of those attempts In the case of a witness who may have key information, delaying the findings in an investigation pending locating the witness is often appropriate, despite the need for timeliness. 4. Did the investigator make decisions and carry out the investigation independently or in concert with others? a. Agreeing to provide "updates" or "interim reports" is inadvisable, as the purpose of such updates (absent compelling circumstances or emergence of fresh information requiring a response) is unclear and it gives the appearance that the - 18 -
direction of the investigation is being scrutinized or decided by decision makers is potentially damaging. Furthermore, such an "interim report" or "update" can be viewed as a basis for retaliatory behavior during the course of the investigation. 5. Was the respondent allowed to hear and respond to the allegations completely? a. There is no reason that an individual who is the subject of allegations should not have the opportunity to fully respond to those allegations, including having a reasonable number of witnesses that they identify interviewed. b. A completely responsive interview is insufficient. The respondent must have the opportunity to provide appropriate narrative and to place their own context on the events and circumstances that are in question. F. SUMMARY There are no universal rules for what constitutes an adequate investigation. Every workplace complaint must be evaluated on an individual basis and the proper scope of an investigation will vary depending on the facts surrounding each complaint. Notwithstanding, a recent decision from the California Court of Appeal reveals some fundamental elements that must be incorporated into any workplace investigation. In Mendoza v. Western Medical Center Santa Ana, 222 Cal. App. 4 th 1334 (2014), Romeo Mendoza, a nurse at Western Medical Center, complained to his manager that he was being sexually harassed by another male employee. The hospital terminated both employees after investigating the complaint and determining - 19 -
that both individuals were equally complicit in engaging in inappropriate conduct. Mendoza sued the hospital for wrongful termination, and a jury entered a verdict in the amount of $238,328. Although the Mendoza court ultimately reversed the verdict due to incorrect jury instructions issued at trial, the court s decision to remand the case for a new trial serves as a cautionary tale for all workplace investigators. In remanding the case, the court declined the hospital s request to direct a judgment in its favor, noting that there was sufficient evidence for the jury to conclude that a substantial motivating factor of Mendoza s firing was his report of sexual harassment. The court explained that the primary evidence against the hospital were the numerous shortcomings in the hospital s investigation of Mendoza s complaint. According to the court, the lack of a rigorous investigation by defendants... did not value the discovery of the truth so much as a way to clean up the mess that was uncovered by Mendoza s complaint. 222 Cal. App. 4 th 1334, 1344. Some of the main deficiencies that the court noted in the hospital s investigation include the following: Lack of formal investigation plan, Delay in interviewing the employees, Failure to take witness statements, Decision to interview both the accused and the accuser simultaneously, Failure to interview witnesses other than the accused and the accuser, Allowing the investigation to be completed by the employees supervisor, rather than a trained human resources employee. - 20 -
Id. at 1337. II. CONCLUSION You should anticipate that your investigation will be scrutinized and so will the investigator. An investigator should be clear about any possibilities of conflicts or perceptions of conflicts. To the degree that there might be a perception of a vested interest or a relationship that creates a conflict, the investigator should not only be satisfied that it has been fully disclosed and managed, but that there is no substantive basis to the concern. - 21 -