The Importance of an Investigation

A couple of weeks ago, the Sixth Circuit (which hears appeals from Tennessee federal lawsuits) issued a decision, Roberts v. Principi, that confirmed the benefit of an employer conducting an investigation before making an adverse employment decision.

No federal discrimination or retaliation statute says an employer must conduct an investigation. Whether they say so or not, judges and juries expect employers to act "fairly" so they have grafted the obligation onto most discrimination and retaliation statutes. Right or wrong, it is now ingrained in our jurisprudence that an employer takes unnecessary legal risks by making decisions without conducting some kind of an investigation.

In the Sixth Circuit decision the employee was a nurse anesthetist ("NA") at the Johnson City, Tennessee VA medical center. The facts are complex and unnecessary to the point so I'll summarize by saying that the NA had issues getting along with her co-workers and complained to the federal EEO counsellor. She alleged a co-workers and supervisors had been hostile and retaliatory toward her. In the meantime, complaints about the NA surfaced (some valid, some biased) and the VA conducted an extensive investigation ultimately concluding the NA's presence during surgery was a problem more of her own doing than anyone elses. Based on this, the decsion-maker concluded the NA should be reassigned to another job. The NA sued contending this reassignment was retaliatory.

After years of litigation, the decision came down to whether or not the reassignment was based upon the improper motives of the co-workers. Had the decision-maker acted solely upon the biased complaints of the co-workers, the court said, that decision would have been retaliatory even if the decision-maker himself did not have it in for the plaintiff. It's a pretty well-settled but oft-confused principle (referred to as the "cat's paw" theory) that if the formal decision-maker is "duped" by those who have discrimiantory motives, those are the motives that count. To avoid this, employers can conduct an independent investigation. It is important that the investigation not be a facade (more on this in the future) and the extent of the investigation should be proportional to the severity of the decision.

Here, the decision-maker relied upon an extensive investigation, one more extensive than the court had upheld in prior decisions. Sure, some of the people interviewed had a "hidden agenda," the court noted, but that alone was not enough. "Where the employer's decisionmaker tries to get all sides of the story, the employer will not be held liable solely because one side might harbor a hidden bias against the plaintiff employee." In this, it is vital to ask the employee for the employee's version of events.

It is not uncommon for employees facing discipline or discharge to claim they are being discriminated against. Oft times, the focus of the discrimination is the employee's immediate supervisor. (Sometimes the employee doesn't assert discrimination by the supervisor until the lawsuit.) How an employer makes the decision is often as important as the decision itself and a valid investigation can moot a world of potential liabilities.

So when confronted with a situation where an employee's conduct might lead to discipline, especially if that employee has complained or exercised any protected rights, the employer should conduct a neutral investigation, interview the employee, and come to a fair resolution before rendering a decison.

A word of caution is necessary. The decision itself is not a "published" decision so it is not in a sense "binding" on district courts but they will nevertheless almost always follow it until a later decision says not to do so.