Finding the Facts - Disciplinary and Harassment Investigation

E VALUATING THE F ACTS

Section 7

A. R EVIEW Y OUR I NVESTIGATION B INDER

At the end of the fact gathering process, the investigator’s binder should contain the following:

 Background documents, i.e., the complaint, the district’s applicable policies, Complaint and Investigation Procedure, etc.



Physical Evidence



Notes or transcriptions of interviews

B. M AKE F ACTUAL F INDINGS

1. B ASIC F ACTUAL F INDINGS After gathering the relevant information, the investigator must make factual findings, or if requested, determine whether misconduct occurred in violation of employer policy.

Factual findings should:

 Address each factual allegation in the complaint (if there is one.);

 Identify factual bases for any of the allegations;

 Identify the absence of factual bases for any such allegations;

 Identify factual bases for any responses/counter-allegations raised by witnesses or accused individual; and  Identify the absence of factual bases for any responses/counter-allegations raised by witnesses or accused individuals. 2. B URDEN OF P ROOF The investigator should make findings based on a “preponderance of the evidence” standard, also called the “more likely than not” standard. That is, “the investigator is making a finding that it’s more likely than not that the conduct alleged occurred, or more likely than not that it did not occur.” 138 This standard has also been described as “fifty percent plus a feather.” 139 Higher standards, such as a “beyond a reasonable doubt” standard and a “clear and convincing” standard are improper standards for an investigation of workplace or student misconduct. The DFEH Workplace Harassment Guide explains:

Beyond a reasonable doubt is the standard used in criminal law, where a defendant is considered innocent until proven guilty and the consequence of guilt is a loss of freedom. Applying such a standard in a workplace investigation

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