Retaliation, Honest Beliefs and Employer Investigation

Taking a risk that I am harping on it too much, today's Sixth Circuit dismissal of a retaliation claim again confirms the value to an employer of conducting an investigation.

Understand my point of view: when my partners and I defend a lawsuit for an employer, we work hard to get the claims dismissed prior to a trial. (It isn't that we don't like trials, some of us do, but it is much more efficient and less risky for the client to get the claims dismissed early on.) With few exceptions, we have to show that even if the evidence were as the plaintiff says it is, our client should still win.

The decision today concerned a lady who alleged she had been harassed and then fired because she complained of harassment. Understand the timing, the employee complained about racial and sexual remarks by a co-worker, filed an EEOC charge, and was then terminated because, the employer asserted, she had filed a false injury report.

The employee claimed she had injured her back when a co-worker (the person she had accused of making harassing remarks) moved a truck while she was standing in its flatbed. The employer investigated even to the point of conducting a hearing where it received testimony (while the decision doesn't explain why a hearing was held, it was likely to satisfy some provision in the union contract). The co-worker and four other employees said they didn't see her in the bed of the truck and that she was, in fact, standing beside the truck when it was started. At the hearing, and at trial, the employee adhered to her story, saying the four witnesses were lying to protect the co-worker.

In dismissing her claim, the court avoided addressing the temporal proximity issue (or the more interesting question about the filing of an EEOC charge over the harassment claim after the employee had been suspended pending an investigation into the making of a false report. Rather, the court held that even if the employee had not filed a false report (as she continued to assert) and even if the four witnesses were lying to support their co-worker, the employer's investigation was sufficient justification for firing the employee. As I said earlier, when an employer is faced with competing versions of events, "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." Brewer v. Bd. of Trs. of Univ. of Ill., 479 F.3d 908, 920 (7th Cir.), cert. denied, 128 S. Ct. 357 (2007).

Why is this so important? At the start I said employers benefit from early dismissals of lawsuits and to get them dismissed we have to show the material facts are not disputed. Here, there was a factual dispute - was the employee in the bed of the truck when it was started - but the employer's investigation resolved that fully and fairly. The investigation made the factual dispute immaterial because the focus was then on the honesty of the employer's decision, not on whether or not the employee had in fact filed a false report. Had the investigation not occurred (such as had the employer promptly fired the employee based solely upon the co-worker's story), or had it been slipshod, the court could have held a jury needed to determine whether the employer retaliated against the employee.