Disciplinary and Harassment Investigations

Case Study Nakai v. Friendship House Association of American Indians, Inc. 142 The case involved claims by Orlando Nakai (Orlando), who was employed by Friendship House Association of American Indians, Inc. (Friendship House), a drug and alcohol rehabilitation program. Nakai’s wife, Karen Nakai (Karen), was also an employee of Friendship House. The program’s CEO, Helen Waukazoo (Helen) was Orlando’s mother-in-law. Karen and Orlando began having marital difficulties. In May 2016, Karen called Helen to inform her that Orlando was armed with a gun, was dangerous, had relapsed on drugs, and was angry with program employees. The next day, Helen put Orlando on paid administrative leave. Karen obtained a temporary restraining order (TRO) against Orlando and provided Helen with a copy. Helen then terminated Orlando’s employment based on the information that Karen provided to her. The appellate court affirmed summary judgment on the ground that Friendship House was not required, by the FEHA, to conduct an investigation of Orlando’s threats prior to terminating him. The FEHA creates an employer obligation to investigate claims of harassment made by a potential victim of harassment. FEHA provides that “[h]arassment of an employee . . . shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” While an employer has an obligation to timely investigate a potential victim’s harassment claims, nothing in the law creates an employer obligation to the alleged perpetrator of the harassment. Because Orlando’s complaints incorrectly assumed that the FEHA investigation obligations applied to him as a perpetrator of the threats of violence, the complaints were not cognizable under the FEHA.

Remedial action should not include moving the complainant to a less desirable work location to separate the complainant from the alleged harasser and hostile work environment. 143 Such action could be perceived as retaliation for complaining about harassment. The public employer should instead consider transferring or moving the alleged harasser. The employer could also consult with the complainant as to how to improve his or her working environment or where, if anywhere, he or she would like to be moved.

LCW Practice Advisor

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 75