Fair Investigations – A Follow Up

In Sunday's post I addressed when an independent investigation will "sanitize" the employer's decision even if a biased subordinate employee might have otherwise influenced the employer to fire another employee. Yesterday, the Sixth Circuit issued another decision on independent investigations and it is worth revisiting the issue to show where an employer did something right.

Rock-Tenn fired a black employee for insubordination. The employee presented evidence that his immediate supervisor was biased but the employee failed to show the supervisor played any role – other than to file a written report on the insubordination incident - in deciding to fire him. The court ducked deciding whether or not the biased supervisor played a role in the decision by holding the employer had conducted an independent investigation during which it gave the employee the opportunity to present his side of the story and that the decision to fire the employee was made only after the employee was heard. So the difference between what Rock-Tenn did and what the employers in Madden and Martin did was to show they listened to the employee and formed their opinion only after hearing the employee's version of events. This case show that even where there is very strong evidence that the immediate supervisor is a first class bigot, the employer can still prevail by conducting an independent investigation.

One judge, however, dissented. I don't normally mention dissents – few attorneys read them and employers don't want to hear lawyers squabble about legal issues. It is worth discussing Judge Moore's points not so much because she is right but because of the impact her views would have on employers were they to prevail.

Judge Moore would have found Rock-Tenn liable because she thought the employer's investigation "severely deficient." While Judge Moore offers good HR policy advice, it is difficult to see how her criticisms of the investigation establish the employer intentionally discriminated against the employee. Citing Madden, Judge Moore faulted Rock-Tenn's investigation because no one "investigated the possible role that [the supervisor's] discriminatory animus may have played in the incident."

Here is where I think Judge Moore went too far. If an employer gives the employee a meaningful chance to present his (or her) version of events, how much more must an employer do to avoid being tagged in a discrimination suit? The employee here had filed two different EEOC charges and several grievances before his insubordination incident so it isn't as if he was timid about asserting charges of discrimination or unfair treatment. (In fact, the employee's grievance over this termination was sustained by an arbitrator.)

Now, I might would agree with Judge Moore had the employee presented some evidence that the supervisor's bias caused the incident that led to his insubordination. While the discrimination laws don't give an employee the license to be insubordinate, evidence that a supervisor's bias somehow triggers an employee's misconduct might be something an employer should investigate. I might also agree had there been some evidence that when interviewed the employee made claims that the employer then ignored. Neither situation occurred here, however.

Judge Moore states her position as being: "When an ultimate decisionmaker has knowledge of a supervisor's racial animus and that supervisor reports an employee in the protected class leading to his termination, management's investigation should not focus only on the employee's alleged misconduct. Instead, management should broaden the scope of the investigation to consider what role, if any, the supervisor's racial animus may have played in the events in question." No doubt, this would be a good rule from an HR point of view but countless decisions have held that courts don't act as "super-personnel departments." Hedrick v. Western Reserve Care System, 355 F.3d 444, 462 (6^th Cir. 2004).

Right now, Judge Moore's view is not the law and her decision cites no other court decision which has espoused her view. So far as I have found, the prevailing view is that an employer simply needs to give the employee a meaningful opportunity to tell his version of events and, of course, the employer needs to listen to the employee with an open mind before making the final decision. Indeed, the principal decision Judge Moore cites (for the reason I explain below) says this is all an employer need do. See Brewer v. Bd. of Trs. of Univ. of Ill., 479 F.3d 908, 920 (7th Cir.), cert. denied, 128 S. Ct. 357 (2007).

Of course, a prudent employer will err on the side of going overboard in an employee misconduct investigation. There is every good reason to do so for, as Judge Moore acknowledges, when an employer is faced with conflicting stories between two employees "there is probably no practical step an employer can take beyond independently investigating the misconduct charges that will reduce the chances of an employee's racism influencing its behavior." (quoting Brewer, supra).