WORKPLACE INVESTIGATIONS REGARDING ALLEGED MISCONDUCT – PITFALLS TO AVOID
By: Martin J. Mayer, General Counsel- California State Sheriffs’ Association
Investigations of alleged misconduct by employees are inevitable, in virtually all employment environments, but most particularly in law enforcement agencies. Since, in California, the state law requires that a process exist to enable the public to file complaints against members of a law enforcement agency, and those complaints must be investigated, the number of such personnel investigations will be significantly higher than in other situations.
Penal Code section 832.5 (a) (1) states: “Each department or agency in this state that employs peace officers shall establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and shall make a written description of the procedure available to the public.”
As such, it is imperative that a full, objective, and defensible investigation be conducted. Criteria for such investigations can be found in various places including court decisions involving investigations of alleged discrimination and/or harassment. The following are some examples of what not to do.
Employers’ Justification of Its Actions
California‘s Fair Employment Housing Act (FEHA) provides, in part, that it is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California, “For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment. [Gov. Code § 12940(a)]
In addition to the list set forth above, discrimination can also be based on retaliation for some act by the employee, or because of union activity. Whatever the basis, if an allegation of discrimination is made against an employer, the burden shifts to the employer to prove “justifiable, non-discriminatory” reasons for the actions taken. Once that has occurred, the employee can respond by alleging that the “justification” is a mere pretext and not supported by evidence. At that point, the burden shifts back to the employer to prove that its justifiable reasons are, in fact, supported by evidence.
As stated by the California Supreme Court, in the case of Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013), “(w)hen a plaintiff has shown by a preponderance of the evidence that discrimination was a substantial factor motivating his or her termination, the employer is entitled to demonstrate that legitimate, nondiscriminatory reasons would have led it to make the same decision at the time. If the employer proves by a preponderance of the evidence that it would have made the same decision for lawful reasons, then the plaintiff cannot be awarded damages, backpay, or an order of reinstatement.” (Emphasis added.)
However, in 2014, in the case of Mendoza v. Western Medical Center Santa Ana, 222 Cal. App. 4th 1334, the California Court of Appeal held that it is not enough for the employer to merely articulate justification, rather, “a thorough investigation of alleged facts must be conducted by the employer to offset the claim that reasons given were merely pretext.”
Mendoza claimed that he was fired in retaliation for reporting allegations of sexual harassment. He had been employed at the hospital for 20 years and it was stipulated that he was an outstanding nurse. The issue was whether he had been sexually harassed by another gay male, Del Erdmann. The gist of Mendoza’s accusation was that Erdmann, on numerous occasions, harassed Mendoza on the job with inappropriate comments, physical contact, and lewd displays (exposing himself to Mendoza). Mendoza denied consenting to such behavior and demanded that it stop.
Erdmann, on the other hand, testified (and stated during defendants’ investigation) that Mendoza consented to Erdmann’s conduct and participated in other mutual interactions. In fact, Erdmann claimed he was a reluctant participant in conduct initiated by Mendoza.
Mendoza admitted that he violated defendants’ policy by not immediately reporting Erdmann’s behavior but he ultimately complained about Erdmann’s conduct after a second incident in which Erdmann exposed himself. After complaining to the hospital, an investigation was initiated.
“Upon the completion of the investigation, defendants fired both Mendoza and Erdmann on December 14, 2010. The written notice of termination provided by defendants to Mendoza cited ‘unprofessional conduct’ as the reason for Mendoza’s dismissal. According to their testimony, the individuals participating in the decision concluded that both Mendoza and Erdmann were complicit in inappropriate and unprofessional behavior.”
“Mendoza sued defendants for wrongful termination in violation of public policy. Answering a special verdict form, the jury found defendants liable for wrongful termination in violation of public policy. The jury determined that Mendoza suffered $93,328 in past economic loss and $145,000 in past emotional distress. The court subsequently entered judgment in favor of Mendoza and against defendants in the total amount of $238,328, plus interest from the date of judgment and costs. Defendants filed a timely notice of appeal.”
Quality of the Investigation
At trial, “Mendoza’s expert witness took issue with the quality of the investigation process. Defendants did not prepare a formal investigation plan. Defendants did not take written statements from Mendoza or Erdmann. Defendants did not immediately interview Erdmann, and suspended the investigation while Mendoza missed work for several weeks following a bicycle accident. When Mendoza returned to work, Mendoza and Erdmann were interviewed simultaneously rather than separately.”
“Defendants did not interview anyone other than Mendoza and Erdmann (such as coworkers who might provide insights as to the credibility of the two men). The individual charged with completing the investigation was not a trained human resources employee, but was instead the supervisor of Erdmann and Mendoza. On cross-examination, Mendoza’s expert conceded he was unaware of any specific information that would have been uncovered had defendants conducted a proper (in the expert’s view) investigation. But a subsequent witness (an employee who conducted Erdmann’s orientation) testified that he noticed Erdmann making sexual innuendos during the orientation.”
Court Discussion
The Court of Appeal reversed the judgment and remanded the case for a new trial based on erroneous jury instructions. However, the Court also made findings about the actions of the employer, including the inadequacy of the investigation, from which significant lessons can be learned.
“With one exception, the elements of Mendoza’s claim are undisputed by the parties on appeal. Mendoza was discharged by his ex-employers, defendants, after Mendoza accused a supervisor, Erdmann, of sexual harassment. The public policy invoked by Mendoza supports his claim in the abstract (i.e., a common law wrongful termination action may be based on the firing of an employee because the employee reports sexual harassment to the employer). Mendoza suffered harm as a result of his termination (and the amount of damages awarded by the jury is not challenged on appeal).”
The Court noted that in cases like the instant one, “the ultimate question for the fact finder is whether the employer’s stated reason for discipline . . . was pretextual or whether there is other evidence that, ‘as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus.’ Defendants claim they fired Mendoza solely because they believed Mendoza willingly engaged in flirtatious and lewd behavior with a supervisor over the course of several months, and not as a result of any retaliatory animus. Defendants assert there is no evidence to establish an inference that they acted in bad faith when they decided to fire Mendoza.”
However, said the Court, “(t)here is sufficient evidence in the record for the jury to conclude that a substantial motivating reason for Mendoza’s firing was his report of sexual harassment. Defendants terminated an excellent, long term employee soon after he reported sexual harassment by a recent hire, Erdmann.”
Importantly, in combination with the . . . facts, Mendoza’s expert witness testified that there were numerous shortcomings in the investigation conducted by defendants following Mendoza’s complaint. The lack of a rigorous investigation by defendants is evidence suggesting that defendants did not value the discovery of the truth so much as a way to clean up the mess that was uncovered when Mendoza made his complaint.” (Emphasis added.)
Conclusion
It cannot be overemphasized that a personnel investigation must be able to withstand scrutiny. It should always be conducted with the presumption that it must be defended in litigation; in that way, additional care will be taken to ensure it can withstand challenge. When examining what the Mendoza court noted about the investigation which was conducted, it is easy to identify its flaws. The mistakes and inadequacies of the investigation were so numerous as to render it, virtually, useless.
Among other things: (1) Defendants did not prepare a formal investigation plan; (2) Defendants did not take written statements from Mendoza or Erdmann; (3) Defendants did not immediately interview Erdmann; (4) Defendants suspended the investigation while Mendoza missed work for several weeks following a bicycle accident; (5) Mendoza and Erdmann were interviewed simultaneously rather than separately; (6) Defendants did not interview anyone other than Mendoza and Erdmann although a subsequent witness (an employee who conducted Erdmann’s orientation) testified that he noticed Erdmann making sexual innuendos during the orientation; and (7) the individual charged with completing the investigation was not a trained investigator.
It is most important that an investigation can be shown to be impartial, unbiased, competently done, and primarily interested in establishing what happened, rather than to protect the employer or any one person. Even if there is no improper motivation, a slipshod and/or incomplete investigation can be strong evidence for a plaintiff, such as Mendoza, to argue that the employer was not truly concerned with finding out the truth.
As the Court states in Mendoza, “(t)he lack of a rigorous investigation by defendants is evidence suggesting that defendants did not value the discovery of the truth so much as a way to clean up the mess that was uncovered when Mendoza made his complaint.”
Martin J. Mayer is a name partner in the public sector law firm, Jones & Mayer, and has served as General Counsel for CSSA for more than 30 years.