Disciplinary and Harassment Investigations

A LL A BOUT THE A UTHORS

With offices in Los Angeles, San Francisco, Fresno, San Diego and Sacramento, the law firm of Liebert Cassidy Whitmore represents public agency management in all aspects of labor and employment law, labor relations, and education law. The Firm's representation of cities, counties, special districts, transit authorities, school districts, and colleges throughout California, encompasses all phases of counseling and representational services in negotiations, arbitrations, fact findings, and administrative proceedings before local, state and federal boards and commissions, including the Public Employment Relations Board, Fair Employment and Housing Commission, Equal Employment Opportunity Commission, Department of Labor and the Office for Civil Rights. The Firm regularly handles a wide variety of labor and employment litigation, from the inception of complaints through trial and appeal, in state and federal courts. The Firm places a unique emphasis on preventive measures to ensure compliance with the law and to avoid costly litigation. For more than thirty years, the Firm has successfully developed and presented training workshops and speeches on all aspects of employment relations for numerous public agencies and state and federal public sector coalitions, including the National League of Cities, National Association of Counties, International Personnel Management Association, United States Government Finance Officers Association, National Employment Law Institute, National Public Employer Labor Relations Association, California Public Employer Labor Relations Association, County Counsels’ Association of California, League of California Cities, California State Association of Counties, Public Agency Risk Management Authority, the Association of California School Administrators, the California School Boards Association, and the California Association of Independent Schools.

This workbook contains generalized legal information as it existed at the time the workbook was prepared. Changes in the law occur on an on going basis. For these reasons, the legal information cited in this workbook should not be acted upon in any particular situation without professional advice.

Copyright © 2020 Liebert Cassidy Whitmore. All rights reserved. No part of this publication may be reproduced, stored, transmitted, or disseminated in any form or by any means without prior written permission from Liebert Cassidy Whitmore.

T ABLE OF C ONTENTS

8-20 S

S ECTION 1 Introduction ...................................................................................................................................................................6

S ECTION 2 When Should an Investigation Be Conducted? .............................................................................................................6 A. When There is a Possible Violation of a Standard of Conduct .......................................................................6 B. When There is Alleged or Suspected Discrimination OR Harassment ...........................................................7 1. Practice Pointers to Recognize the Triggering Duty to Investigate..........................................................8 2. What if the Complainant Does Not Want an Investigation? ....................................................................8 3. When Should the Investigation Begin? ....................................................................................................8 C. Before the Investigation Begins ....................................................................................................................10 1. Follow the Agency’s Investigation Procedure .......................................................................................10 2. Document the Complaint .......................................................................................................................11 3. Review the Allegations: What Type of Discrimination or Harassment?...............................................11 S ECTION 4 Who Should Be Assigned to Conduct the Administrative Investigation? ...................................................................15 A. Selecting the Right Person for the Job ..........................................................................................................15 1. Credibility, Rank and Experience ..........................................................................................................17 2. Personality, Demeanor and Character ....................................................................................................17 3. Impartiality.............................................................................................................................................18 4. Harassment Investigations: Accountability, Continuity and Experience ...............................................18 5. Report-Writing Ability...........................................................................................................................18 B. When to Use an Outside Investigator ............................................................................................................18 C. Investigator Determines the Facts .................................................................................................................19 D. Using an Attorney to Conduct an Investigation ............................................................................................19 E. Using an Attorney to Direct a Third Party Investigation...............................................................................20 F. Must an Outside Investigator Be a Licensed Private Investigator? ...............................................................20 S ECTION 5 Beginning the Investigation .........................................................................................................................................21 A. Preliminary Issues to Consider Prior to Starting the Investigation................................................................21 B. When Do You Advise the Employee That He/She is the Subject of the Investigation? ...............................23 C. What if the Subject Matter of the Investigation Relates to Criminal as Well as Administrative Misconduct? 23 D. Have a Good General Knowledge of Agency Policy Regarding the Conduct Alleged .................................26 S ECTION 6 Gathering the Facts......................................................................................................................................................27 A. Create a Binder..............................................................................................................................................28 B. Background Documents ................................................................................................................................28 1. Personnel Files .......................................................................................................................................28 2. Prior Complaints ....................................................................................................................................29 C. Documentary and Physical Evidence ............................................................................................................29 D. Interviews ......................................................................................................................................................30 1. Goals of the Interviews ..........................................................................................................................30 2. Preparation for the Interviews ................................................................................................................30 3. Interview Protocol..................................................................................................................................38 S ECTION 3 What Standard Does an Investigation Have to Meet? .................................................................................................14

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Sample Lybarger Admonition.......................................................................................................................45 4. Interview Strategies................................................................................................................................49 5. Conclusion .............................................................................................................................................52 E. Administrative Searches................................................................................................................................52 1. Balancing Employee Privacy Interests...................................................................................................52 2. Guidelines for Conducting Workplace Searches:...................................................................................56 3. Searching an Employee’s Person or Personal Possessions ....................................................................57 4. Employee Monitoring ............................................................................................................................57 F. Polygraphs.....................................................................................................................................................62 G. Access to and Use of Criminal Records ........................................................................................................62 1. Arrest Records........................................................................................................................................62 2. Employment Decisions Based upon Criminal Records..........................................................................62 H. Concluding the Investigation.........................................................................................................................63 S ECTION 7 Evaluating the Facts.....................................................................................................................................................64 A. Review Your Investigation Binder ................................................................................................................64 B. Make Factual Findings ..................................................................................................................................64 1. Basic Factual Findings ...........................................................................................................................64 2. Burden of Proof......................................................................................................................................64 3. Credibility Determinations ........................................................................................................................65 C. Make Conclusions of Policy only– If Directed to Do So ..............................................................................67 S ECTION 8 Writing the Report .......................................................................................................................................................68 A. Contents of the Report...................................................................................................................................68 B. Attachments to the Report .............................................................................................................................68 C. Confidentiality of Investigation Report: How Much Can or Should Be Disclosed to the Complainant or the Accused? .......................................................................................................................................................69 1. How Much Do You Tell the Complainant? ...........................................................................................69 2. How Much to Tell the Accused..............................................................................................................70 3. Discoverability of the Report .................................................................................................................72 S ECTION 9 Taking Corrective Action ............................................................................................................................................74 A. Prompt and Effective Remedial Action.........................................................................................................74 B. Type of Corrective Action.............................................................................................................................74

E NDNOTES .................................................................................................................................................................79

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I NTRODUCTION

Section 1

This workbook is directed to supervisors and mid and upper level managers who are responsible for investigating or arranging for an investigation into reported allegations or evidence of employee misconduct, including harassment. The purpose of an investigation is to gather all of the facts needed to make a determination as to what occurred or did not occur. This workbook is designed to provide a step-by-step guide for conducting an administrative investigation. However, Liebert Cassidy Whitmore cautions that this information should not be viewed as a substitute for early evaluation whenever a complaint is received, and cannot replace the critically important assistance of legal counsel.

W HEN S HOULD AN I NVESTIGATION B E C ONDUCTED ?

Section 2

A. W HEN T HERE IS A P OSSIBLE V IOLATION OF A S TANDARD OF C ONDUCT In the overwhelming majority of California public agencies, discipline can be imposed only if the employee has violated a clearly defined standard of conduct. An administrative investigation into alleged misconduct by an employee should therefore be conducted when there is reasonable suspicion to believe that an employee has violated a rule or regulation. Below are common personnel rules and regulations and/or memoranda of understanding (MOU) provisions that provide for the imposition of discipline: Any permanent or probationary employee may be dismissed, demoted, or suspended for the following causes:

a) Immoral conduct.

b) Unprofessional conduct.

c) Dishonesty.

d) Incompetency.

e) Addiction to the use of controlled substances.

f) Failure or refusal to perform the normal and reasonable duties of the position.

g) Conviction of a felony or conviction of any misdemeanor involving moral turpitude.

h) Fraud in securing appointment.

i) Drunkenness on duty.

j) Violence or threats of violence in the workplace.

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In addition, the source of the allegations of misconduct should be considered. For example, an anonymous letter claiming that a public employee had parked an agency vehicle in a “No Parking” zone would not necessarily justify an investigation of such an allegation. (However, a brief conversation with the implicated employee might well be in order). On the other hand, an anonymous letter alleging that an employee of a city treasurer’s office has been seen removing money from a cash register and putting it in his pocket should prompt an investigation. If alleged misconduct involves harassment, discrimination, retaliation, or other illegal conduct including whistleblower retaliation, it is important that the agency investigate and take prompt corrective action if warranted. Failure to conduct a prompt, fair, and thorough investigation in such cases could subject your agency to liability under both federal and state law. B. W HEN T HERE IS A LLEGED OR S USPECTED D ISCRIMINATION OR H ARASSMENT In the case of harassment, the California Fair Employment and Housing Act 1 imposes an affirmative obligation on employers to take all reasonable steps necessary to prevent discrimination and harassment from occurring in the workplace. 2 To satisfy this obligation, employers must investigate complaints of discrimination or harassment. The Equal Employment Opportunity Commission 3 has also imposed a duty upon employers to investigate complaints of harassment. 4 In fact, case law establishes that once an employer knows, or should have known of possible harassment, failure to conduct any investigation at all may constitute an independent violation of federal law (Title VII). 5 The prevalence of harassment claims, and the employer’s corresponding duty to investigate, can be easily placed into perspective with statistics. In 2017, the EEOC received 84,254 complaints of discrimination and harassment. 6 Of these complaints, the EEOC prosecuted 201 claims in various courts of law and obtained approximately $42.4 million in monetary benefits for aggrieved employees. 7 An employer should take every complaint seriously. Anytime a complaint of discrimination or harassment is received, either formally or informally, the agency must conduct an investigation. 8 This is true even where the complaint appears to have no merit whatsoever. An investigation may also be triggered by the following:  When a person, other than the aggrieved person, complains about discrimination or harassment;  When someone indicates that inappropriate conduct is occurring, even if the word “discrimination” or “harassment” is not used;  When a supervisor personally observes inappropriate conduct or language, or has general knowledge of a potentially hostile work environment. In this situation, the supervisor must request that any inappropriate conduct cease and that an investigation be conducted.

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1. P RACTICE P OINTERS TO R ECOGNIZE THE T RIGGERING D UTY TO I NVESTIGATE Do not wait for a formal complaint. If you know of possible harassment, or think you may know of possible discrimination or harassment because of rumors or what you see or hear, report it to human resources or as otherwise appropriate in your agency so it is promptly investigated. In Van Zant v. KLM Royal Dutch Airlines , 9 the court held that a supervisor’s knowledge of improper conduct may be directly imputed to the employer, and thus trigger the duty to investigate, if the supervisor is placed on notice of the improper conduct and maintains a sufficiently high level in the employer’s hierarchy. Similarly, in Varner v. National Super Markets, Inc. , 10 the court held that an employer’s notice of improper conduct, even though the employee failed to follow the employer’s procedures for reporting misconduct, triggered the employer’s duty to investigate. 2. W HAT IF THE C OMPLAINANT D OES N OT W ANT AN I NVESTIGATION ? Sometimes, complaining parties who report an incident of discrimination or harassment request that the employer do nothing. However, honoring such a request could place other employees at risk for discrimination or harassment. Also, “doing nothing” or failing to investigate could place the public agency at risk for liability for failure to investigate and failure to take prompt remedial action. Once on notice of an alleged occurrence of discrimination or harassment, the employer must investigate, despite the complainant’s request to “do nothing” or not to investigate. The employer should therefore advise the complainant that it will investigate the complaint, but it should also elicit and address any specific concerns that the complainant has regarding an investigation.

The investigation should proceed even when the alleged victim or other complainant does not request or consent to an investigation.

LCW Practice Advisor

3. W HEN S HOULD THE I NVESTIGATION B EGIN ? The investigation should start within a few days of the receipt of the complaint (if one is filed) or when the employer otherwise becomes aware of possible discrimination, harassment or other alleged misconduct. If an investigation is delayed, memories fade, evidence may disappear, and the employer may be accused of failing to take prompt and effective remedial action. The following cases illustrate this principal:

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Cases on Point: Waymire v. Harris County 11

An employer prevailed in a harassment case in which (1) the supervisor began the investigation on the day the plaintiff complained, (2) the supervisor interviewed the plaintiff, accused harasser and several witnesses within one week, and (3) the employer prepared a report regarding the investigation, forwarded it to management personnel, and reprimanded the “harasser.” Werger v. City of Ladue 12 An employer prevailed in a harassment case where (1) numerous co-workers witnessed some of the objectionable conduct, (2) the Department Head immediately separated the accused from the accusers, ending the harassing behavior, and (3) the department head conducted an immediate and thorough investigation. Carmon v. Lubritzol Corp. 13 An employer prevailed in a harassment case in which several supervisors and the personnel manager (1) met with the plaintiff the day she complained to tell her they appreciated her bringing the incident to their attention and to reiterate the policy against harassment, (2) completed the investigation within three days, and (3) reprimanded and transferred the alleged harasser, even though there were no corroborating witnesses. Steiner v. Showboard Operating Co. 14 An employee prevailed where the employer failed to promptly investigate a claim of harassment after (1) the plaintiff complained of sexual harassment, (2) the employer did not initially investigate the claim, (3) the employee filed a charge with the EEOC, and (4) the employer investigated the complaint. Valentín v. Municipality of Aguidilla 15 And a jury found in favor of an employee in a harassment case where the agency did not conduct an investigation after (1) the employee complained to the designated complaint-receiver, lieutenant in charge of internal affairs investigations, the Police Commissioner, and the Mayor, (2) the accused and his friends admonished and disciplined the employee, and (3) the employee took 2 leaves of absence due to stress from the harassment. Dept. of Fair Employment & Housing v. Lyddan Law Group 16 DFEH may prosecute an action for failing to take all reasonable steps to prevent harassment as an independent violation even where there is no legally actionable claim of harassment.

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Bottom line: To promote effective operations and avoid liability, investigate promptly.

A prompt investigation can assist in stopping discriminatory or harassing behavior, sends a message that the employer takes the complaint seriously, helps protect the preservation of evidence (including physical evidence such as emails and videos, and witnesses’ memories), and allows the employer to fairly address the issues in a manner that can minimize disruption to the workplace and individuals involved. 17

C. B EFORE THE I NVESTIGATION B EGINS

1. F OLLOW THE A GENCY ’ S I NVESTIGATION P ROCEDURE One of the requirements in meeting the obligation to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct is to have a discrimination and harassment policy. Agencies must have a policy and that policy must include a complaint and investigation process. 18 The courts, the EEOC, and the DFEH expect agencies to closely follow those procedures in responding to complaints of discrimination, harassment, and retaliation, including to abide by all the time lines. The Fair Employment and Housing Council adopted amended regulations, effective April 1, 2016, addressing certain components that must be included in an employer’s written internal complaint process. An employer’s written internal complaint process must provide that:  Employees’ complaints are designated confidential, to the extent possible, although the employer is not required to keep the investigation of the complaints completely confidential.

 Complaints are responded to and closed in a timely manner.

 Allegations of misconduct are investigated in a fair, timely, and thorough manner, that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.

 Complaints are investigated by qualified personnel.

 Complaints are documented and tracked for reasonable progress.

 Complaints are responded to with appropriate options for remedial actions and resolutions if the investigation reveals that misconduct occurred.  Employees may complain, either orally or in writing, to someone other than their immediate supervisor, such as a human resources manager, EEO officer, or other supervisor; a complaint hotline; and/or the DFEH and the Equal Employment Opportunity Commission (“EEOC”).

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 Supervisors report any complaints of misconduct to a designated employer representative, such as a human resources manager, so the employer can try to resolve the claim internally.  Employees are not exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation. 19 On May 2, 2017, the DFEH issued its Workplace Harassment Guide for California Employers. The Guide provides comprehensive instruction to employers on how to investigate reports of workplace harassment. Although the Guide is focused on workplace harassment, and should be used for discrimination and retaliation claims as well, it is an excellent resource that should be consulted in conducting any type of investigation concerning employees. 2. D OCUMENT THE C OMPLAINT If the investigation is triggered by a complaint, it should be thoroughly documented. A complaint can either be made verbally or in writing. When a complaint is made verbally, a written summary of the allegations should be made immediately and signed by the complainant, or the complainant should be asked to place his/her complaint in writing. If the complainant refuses to sign a written statement of the allegations or to submit a written complaint, a written record of the complaint should still be made with a notation of the complainant’s reluctance to place his/her complaint in writing. Having a written record of the complaint will provide accuracy and clarity of the charges being investigated and will guide the investigator in conducting the investigation. The investigator should make sure he/she fully understands the allegations and issues presented by the complainant, as well as the relevant policies. An effective tool is for the investigator to write down his/her initial analysis of the complaint. 3. R EVIEW THE A LLEGATIONS : W HAT T YPE OF D ISCRIMINATION OR H ARASSMENT ? Investigations are better focused and elicit more relevant information if the nature of the complaint is well understood. After a complaint of discrimination or harassment has been received and documented, the allegations must be reviewed to determine what type of discrimination or harassment is alleged in the complaint. Unlawful harassment includes both hostile work environment and quid pro quo sexual harassment. Keep in mind that harassing conduct may violate an agency’s policy even though it would not constitute unlawful harassment.

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a. Hostile Work Environment For hostile work environment harassment to be unlawful, the conduct must be based on the alleged victim’s protected status or the perception of a protected status, such as his/her:



Race



National Origin or Ancestry

 Sex (including gender and pregnancy)



Age (40 years and older)

 Physical or Mental Disability, or Medical Condition



Religion



Marital Status



Sexual Orientation



Gender identity and expression



Genetic information

 Opposition to Unlawful Harassment (i.e., retaliation)

Harassment based on sex includes harassment of a sexual nature, gender harassment, and harassment based on pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. 20 Whether motivated by hostility or by sexual interest, harassing conduct of a sexual nature, is always based on sex, regardless of the gender of the alleged victim or the sexual orientation of the harasser. Thus, same sex harassment and harassment by a homosexual employee of an employee of the opposite sex are also unlawful. 21 Further, in evaluating the severity and pervasiveness of sexual harassment, courts may focus on the perspective of the victim. 22 Although state law (under the Fair Employment and Housing Act) discussed above, expressly protects employees from discrimination and harassment on the basis of sexual orientation and gender identify and expression, the issue of whether Title VII provides these same protections was not definitively settled until June 15, 2020, when the United States Supreme Court decided the hallmark case of Bostock v. Clayton County . 23 In Bostock , the Court ruled that Title VII of the 1964 Civil Rights Act protects employees from discrimination, on the basis of their sexual orientation and transgender status. The Court ruled that the plain language of the statute – prohibiting discrimination “because of” sex – incorporates discrimination based on sexual orientation or transgender status. The Court stated: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” For example, if an employer fires a male employee for being attracted to men, but does not fire a female employee for being attracted to men, the employer’s decision is based on sex. The Court explained that “homosexuality and transgender

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status are inextricably bound up with sex . . . . because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” A work environment is hostile if:  The conduct is so offensive that it interferes with an employee’s work performance. Effective January 1, 2019, a plaintiff no longer needs to prove his or her “tangible productivity” declined as a result of harassment; a plaintiff simply needs to show a “reasonable person” would find the harassment made it more difficult to work. 24  The conduct is so severe or pervasive that it creates an objectively hostile or abusive work environment. Effective January 1, 2019, this standard no longer applies and a single incident of harassing conduct will be sufficient to create a triable issue of fact regarding the existence of a hostile work environment. 25 And

 The alleged victim subjectively perceives the environment to be abusive. 26

Most agencies have policies that prohibit harassing conduct that does not rise to the level of unlawful harassment. Therefore, the investigation must determine whether there was a violation of agency policy.

Cases on Point: Herberg v. California Institute of Arts 27

An employee claimed she was subjected to a hostile work environment based on a piece of art displayed on the employer’s premises depicting the employee engaged in a sexual act. The piece of art was displayed for a 24-hour period. The court rejected the claim and held that liability for sexual harassment may not be imposed based on a single incident that does not involve outrageous conduct, such as an assault. 28 Fuller v. City of Oakland 29 An employee prevailed on a claim of sexual harassment against a co-employee and the employer. The employee and co-employee mutually dated for a few months. After the employee called off the relationship, the co-employee (1) threatened to kill himself, (2) forced the employee to drive off the road, (3) forcibly obtained the employee’s unlisted phone numbers, and (4) left several unsolicited telephone messages for the employee. 30 Jacobus v. Krambo Corp. 31 However, an employee did not prevail on a claim of sexual harassment against a co-employee based on mutual sexual banter. The employee and co-employee frequently engaged in sexual conversations, socialized outside of the workplace, and joked about going to a strip club together. The co-employee also shared sexually explicit materials with the employee at the employee’s request. 32

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b. Retaliation Retaliation against a person who brings a good faith complaint of discrimination or harassment or participates in an investigation of discrimination or harassment, is unlawful and violates most agencies’ policies. Even if discrimination or harassment is not found to have occurred, if the complaint was made in good faith, the employee may not be retaliated against for making the complaint. 33 However, a filing of a fabricated complaint is not protected and an employee can be disciplined for filing a false harassment complaint. 34

An employer always runs the risk of a retaliation claim whenever the employer disciplines an employee for making a false discrimination or harassment complaint because the discipline follows the protected activity of complaining. Employers are best advised to pursue discipline only when there is unequivocal evidence that the complaint was false.

LCW Practice Advisor

While a single severe adverse employment action such as termination or demotion will suffice to demonstrate retaliation, so too can a series of actions—including unwarranted criticism, unwarranted negative performance evaluations and solicitation of negative feedback from subordinates—which viewed together amount to an adverse employment action. 35 c. Violation of Agency’s Anti-Harassment Policy An agency’s policy may be violated even if the conduct complained of does not constitute “unlawful” harassment. Many agencies have policies that prohibit conduct that does not rise to the level unlawful harassment. In that case, the focus of the investigation is whether the agency’s policy was violated – not whether the law was violated. d. Quid Pro Quo Sexual Harassment Quid pro quo harassment occurs when submission to sexual conduct is explicitly or implicitly made a condition of a job, a job benefit, or the absence of a job detriment. 36 It can include sexual propositions, unwarranted graphic discussions of sexual acts, or commentary on an employee’s body. 37 W HAT S TANDARD D OES AN I NVESTIGATION H AVE TO M EET ? As discussed above, the Fair Employment and Housing Act (FEHA) regulations were amended in 2016 requiring employers to create detailed written policies for preventing harassment, discrimination and retaliation. At its core, an investigation must be fair, thorough and timely initiated and completed. Section 3

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The FEHA Workplace Harassment Prevention Guide (Guide) provides critical guidelines on the entire investigative process. Although guidelines do not pose legal requirements, they reflect best practices and a “gold star” standard. In evaluating an investigation and whether it complies with the 2016 FEHA regulations the DFEH will test it against the standards in the Guide and Courts are likely to also consider these guidelines in evaluating investigations. Accordingly, guidelines should be closely adhered to and are addressed throughout this workbook. Specifically, the Guide addresses (1) responding to a complaint of harassment; (2) the basic steps for a fair investigation; (3) confidentiality issues related to the investigation; (4) how quickly to begin and finish an investigation; (5) recommended practices for conducting an investigation; (6) investigator qualifications and training; (7) type of witness questioning (8) making credibility determinations; (9) burden of proof required in making findings; (10) making factual and not legal conclusions; (11) documentation of investigations; and (12) special issues, i.e. when the target of harassment asks the employer not to do anything or when investigating an anonymous complaint.

W HO S HOULD B E A SSIGNED TO C ONDUCT THE

Section 4

A DMINISTRATIVE I NVESTIGATION ?

A. S ELECTING THE R IGHT P ERSON FOR THE J OB

Before an investigation can begin, an investigator must be selected. The investigator is responsible for:



Conducting the investigation



Evaluating the facts



Rendering factual findings



Writing a report

Conducting an investigation is a major responsibility. In discipline cases, employees may challenge the fairness or accuracy of the investigation, making the investigation itself subject to scrutiny in a hearing or judicial proceeding. If litigation ensues as a result of alleged discrimination or harassment, the plaintiff may be able to gain access to the investigation: the written report and the investigator’s binder, including the investigator’s notes, may be discoverable. It is therefore crucial that the agency choose an appropriate individual who is capable of conducting a PROMPT, FAIR and THOROUGH investigation.

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Case Study Jameson v. Pacific Gas and Electric Company 38

Pacific Gas and Electric Company terminated Steve Jameson after an investigation by the company concluded that Jameson had retaliated against another employee for raising a safety issue about Jameson. Jameson argued his termination was improper because the investigation was procedurally flawed and the investigator reached incorrect conclusions. The California Court of Appeal held that the standard of review is not whether the investigation could have been done differently, more comprehensive, or whether the investigator’s conclusions were correct. The courts will not compel employers to undertake a precise type of investigation; instead the investigation must be “inherently fair.” Applying this standard, the Court found the employer could not be held liable for wrongful termination because there was no evidence the investigation was not inherently fair or that the employer’s reliance on the investigation report was unreasonable or in bad faith. In reaching this decision, the Court cited the California Supreme Court decision in Cotran v. Rollins Hudig Hall Intern. Inc . 39 which held that fairness in the investigation process “contemplates listening to both sides and providing employees a fair opportunity to present their position and to correct or contradict relevant statements prejudicial to their case, without the procedural formalities of a trial.” Jameson and Cotran stand for the principle that courts will not second-guess whether an employer’s investigation could have been more thorough or effective, as long as the investigative process is inherently fair. If this criterion is met, an employer’s investigative efforts may serve a basis for defending against an employee’s wrongful termination claim. LCW’s attorneys can advise and guide your agency through the multiple steps of the investigation process, from selection of an investigator to notice of the completion and outcome of the investigation and any actions to be taken after completion of an investigation report.

Important Consult with legal counsel before deciding whether to turn over or turning over the written report or any other materials gathered during the investigation. The investigator can be a supervisor, a human resource or personnel employee, an outside consultant, private investigator, or an in-house or contract attorney. It is important that one individual be in charge of the investigation without interference from others in the organization.

To fulfill his/her responsibility for acting promptly and fairly, the investigator must be provided the necessary resources, training and access to documents, information, and witnesses.

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1. C REDIBILITY , R ANK AND E XPERIENCE The DFEH requires “[i]mpartial and timely investigations by qualified personnel.” 40 In general, when an investigation is conducted internally, it is preferable to have the investigation conducted by an upper management employee who is higher ranking than those to be interviewed and who has established credibility within the agency. However, a lower ranking investigator can be vested with authority by a supervisor to require employees who are otherwise above him/her in the chain of command to participate in an administrative interview. The investigator should also be someone who is knowledgeable in the area of discrimination and harassment, including the agency’s policies and procedures that prohibit discrimination and harassment and the type of conduct that violates the agency’s policy. Since investigating is a learned skill, the investigator should also either be trained or have experience in conducting investigations. The investigator should also have sufficient communication skills to conduct the interviews and deliver written or verbal findings. The Guide requires that investigators be qualified and knowledgeable about standard investigatory practices, including knowledge of laws and policies relating to harassment, investigative techniques relating to questioning witnesses, documenting interviews and analyzing information. The DFEH Workplace Guide sets forth minimum training specific requirements for investigators. As the DFEH’s Workplace Guideline explains:

At a minimum, training should cover information about the law shaping investigation recommended practices, how to determine scope (what to investigate), effective interviewing of witnesses, weighing credibility, analyzing information and writing a report. An introductory training program typically lasts a full day (some training is longer) and includes skill-building exercises. 41

2. P ERSONALITY , D EMEANOR AND C HARACTER

The investigator should be someone who is patient, thorough, and assertive. Many investigations, harassment in particular, involve interviewing people who are reluctant to provide information. The investigator must be capable of pursuing lines of questioning with individuals who are reluctant or deceptive during an interview – while remaining unbiased and maintaining a non-accusatory, positive rapport with interviewees. Administrative investigations should always be conducted in a professional and courteous manner. Nevertheless, any proceeding which can result in the imposition of discipline may become adversarial and confrontational. The investigator is not an advocate for the complainant, the alleged wrongdoer, or the agency. Neutrality and objectivity enhance the credibility of the investigator and the investigation. Investigators who demonstrate impartiality and integrity will be more effective in conducting investigations.

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3. I MPARTIALITY Perhaps the most important quality of an investigator is impartiality. To conduct a fair investigation and to minimize conflict of interest claims, the investigator must not be biased in any manner toward the people involved in the investigation. Additionally, the investigator must not have any biases toward the nature of the allegations being investigated. If there is any doubt as to the investigator’s ability to remain impartial throughout the course of the investigation, another investigator should be assigned. 4. H ARASSMENT I NVESTIGATIONS : A CCOUNTABILITY , C ONTINUITY AND E XPERIENCE Accountability, continuity and experience are particularly important for discrimination and harassment investigations. The investigator should be knowledgeable in the area of discrimination and harassment, including the agency’s policies and procedures that prohibit harassment and the type of conduct being investigated, as well as being experienced investigating these complaints. 5. R EPORT -W RITING A BILITY The investigator must have the ability to compile and analyze the data from the investigation in a concise and organized manner. A good report will include any needed credibility assessments and will support conclusions with specific factual evidence. The investigator must understand the difference between making factual findings and inappropriate conclusions of law. B. W HEN TO U SE AN O UTSIDE I NVESTIGATOR In certain circumstances, an agency may want to consider using someone from outside the agency to conduct the investigation. An outside investigator should be considered when the alleged harasser is a high level employee or official in the agency. When the accused harasser is someone in such a position, it may be difficult to find someone within the agency who could perform an unbiased and impartial investigation. An outside investigator should also be considered if the investigation is complex. Investigations can be very time consuming. It may be more efficient to have the investigation conducted by someone outside the agency who can devote the time necessary to conduct a prompt and thorough investigation. There may also be multiple other reasons for considering an outside investigator.

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C. I NVESTIGATOR D ETERMINES THE F ACTS The agency should direct the investigator to gather facts, make any needed credibility determinations, prepare factual findings and issue a report (which will likely be discoverable). The agency attorney (not an attorney investigator) can then conduct a legal analysis and develop conclusions about the conduct, potential liability and similar legal issues. This legal report would probably be privileged and not subject to disclosure unless the agency chose to disclose it.

The agency should clearly communicate to the investigator the scope of the investigation.

D. U SING AN A TTORNEY TO C ONDUCT AN I NVESTIGATION Some circumstances may warrant having an attorney conduct the investigation. When an attorney is the investigator, the attorney-client privilege and attorney work-product doctrine may prevent disclosure of the attorney/investigator’s notes, reports, and other information gathered during the investigation. Therefore, when an investigation involves highly sensitive allegations, the agency may consider having an attorney conduct the investigation. However, it still may not be possible to shield the investigative report even when conducted by an attorney acting. Eventually, it may be necessary to disclose information gathered during the investigation to support discipline or to establish that a fair and thorough investigation was conducted. In fact, if DFEH or EEOC charges are filed or litigation ensues as a result of the investigation, the investigator may be compelled to disclose the details of the investigative process, his/her notes, the report(s), and any other work product created as part of the investigation. In Wellpoint Health Networks, Inc. v. Superior Court , 42 an employee complained that he was subjected to racial discrimination. A law firm conducted an investigation of the allegations. During subsequent litigation, the court held that if an employer defends a lawsuit by claiming that it conducted a thorough investigation and took an appropriate corrective action, “it does so with the understanding that the attorney-client privilege and the work product doctrine are thereby waived.” 43 However, this was a situation where the employer put the investigation at issue by setting forth a defense that a proper investigation was conducted. The court in Wellpoint did note that by retaining an attorney to conduct an investigation, an employer establishes a prima facie claim of attorney-client privilege. 44 In Petaluma v. Superior Court of Sonoma County , 45 the City retained an outside attorney to perform an investigation to assist the City in determining how to respond to an EEOC complaint and anticipated lawsuit, a legal service. The attorney was not only gathering facts; she was instructed to use her legal expertise to identify pertinent facts and come to a conclusion as to what happened. Plaintiff, on the other hand, was not able to present relevant evidence to contradict the City's assertion that the investigation materials were privileged. As a result, the Court determined that both the attorney-client privilege and work product doctrine applied. The court of appeal held that an employer does not waive privilege associated with an investigation conducted after the employee leaves employment simply by asserting the avoidable consequences defense. The Court determined that asserting the avoidable consequences doctrine

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may put the adequacy of an investigation into issue if the person was still employed and able to take advantage of an employer's corrective measures. However, a post-employment investigation would not be directly at issue since the employee could not take advantage of corrective measures. The City did not and could not attempt to rely on the investigation itself as a defense. Accordingly, if the employee had not quit and the employer was relying on the report in its defense, the privilege would likely not apply. E. U SING AN A TTORNEY TO D IRECT A T HIRD P ARTY I NVESTIGATION When an attorney directs a third party to investigate, and takes no part in the fact finding, the attorney work-product doctrine may prevent disclosure of the investigator’s notes, reports, and other information gathered during the investigation. 46 However, as noted above, it may be necessary to subsequently disclose the investigation report to support discipline, establish that a fair and thorough investigation was conducted. In fact, if a complainant files a charge and/or lawsuit for alleged violations of harassment, discrimination and/or retaliation laws, the investigator may be compelled to disclose the details of the investigative process, his/her notes, report, etc.. The attorney should direct the investigator to gather facts, make any needed credibility determinations, prepare factual findings and issue a report (which will likely be discoverable). Then, the agency attorney can conduct a legal analysis and develop conclusions about harassment, potential liability, and similar legal issues. As long as the attorney does not participate in the fact finding functions, the attorney’s legal analysis is privileged. 47 F. M UST AN O UTSIDE I NVESTIGATOR B E A L ICENSED P RIVATE I NVESTIGATOR ? One issue that has arisen for employers who hire outside consultants or attorneys to conduct investigations into complaints of employee misconduct, including complaints of discrimination and harassment is whether these outside investigators must hold private investigator licenses. California Business and Professions Code sections 7521, et seq., sets forth California’s “Private Investigator Act.” Under the Act, any person engaging in a business as a private investigator without a license is guilty of a misdemeanor punishable by a fine of $5,000 and/or by imprisonment in the county jail not to exceed one year. Under the Act, any person who knowingly engages a nonexempt unlicensed person also is guilty of a misdemeanor punishable by the same amount of fine and term of imprisonment.

Under the Act, a “private investigator” is:

“[A] person…who…engages in business or accepts employment to furnish, or agrees to make, or makes, any investigation for the purpose of obtaining, information with reference to:

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