1. Navigating the Waters of a Successful Workplace Investigation
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2. Navigating the Waters of a Successful Workplace Investigation
Presented by Nancy Sheehan
Porter Scott
(with appreciation to Derek Haynes and Katie Mola)

3. Goals for this Presentation
Learn what UC policy and the law requires for workplace investigations
Learn why workplace investigations are important
Learn how to conduct a workplace investigation
Learn how to write a report on an investigation
-View from the end point, but have clear vision of what goes on along the way
-Most of you will never find yourself in front of jury
-But if something you investigate gets there, we want the process to survive the scrutinty

4. U.C. Policies PPSM 12: Non discrimination in employment
Policy language is consistent with state and federal law prohibiting discrimination, harassment and retaliation for engaging in protected activity
-UC policies will always be the starting point
-Policy and question of whether it was violated is the focus of investigation and report

5. Policy on Sexual Harassment
U.C. Policies
Policy on Sexual Harassment
Sexual Harassment Policy
“Supervisors, managers, and other designated employees are responsible for taking whatever action is necessary to prevent sexual harassment, to correct it when it occurs, and to report it promptly to the Title IX Compliance Officer (Sexual Harassment Officer) or other appropriate official designated to review and investigate sexual harassment complaints.”
Also applies to harassment based on any other protected characteristic.
-Sexual harassment is focus of a specific state law, but harassment on basis of race, age, religion, disability, marital status, sexual orientation, gender also fall under this

6. Procedures for Responding to Reports of Sexual Harassment
U.C. Policies
Procedures for Responding to Reports of Sexual Harassment
Sexual Harassment Response Procedures
Sexual Harassment Officer is responsible for implementing procedures for prompt and effective response to reports of harassment.
Also responsible for maintaining records of investigations, voluntary resolutions, and disciplinary action.
All University employees are encouraged to report conduct that may violate the policy.
-Check campus local policy

7. U.C. Policies Procedures for Responding to Reports of Sexual Harassment
Early Resolution
Used where parties are cooperative and desire to resolve situation at earliest possible stage
May involve fact finding, but no formal investigation
Flexible approach, which may involve mediation, remedial education, counseling or agreed upon corrective action as outcome
Not all claims are suitable for this approach
Formal Investigation
Accused person must be provided with written request for investigation or summary of claims
Full investigation conducted, including interviews of complainant, respondent and witnesses
Investigation should be completed within 60 days
Written report should be prepared
Early resolution: this can apply to different types of harassment. More of a mediated approach. Still important to document what took place, what agreements were reached, and why. If there is a subsequent complaint, the viability of the resolution reached on the first complaint will come into issue.
-Example: complaint that one employee made a racial comment in presence of another. Offending employee admits doing so. Resolution may consist of attending a cultural sensitivity class and hearing from the complainant about how the remark affected him. Important to remind parties of prohibition against retaliation.
-Formal investigations: seem to be more common.

8. U.C. Policies
PPSM 70
General policy for addressing complaints from staff
Addresses claim that management act adversely affected terms and conditions of employment
Not limited to harassment, discrimination or retaliation
Three step process
Step II involves appointment of a fact finder and issuance of a report pursuant to local procedures
Step III provides for a hearing before a hearing officer for limited subject matter (including discrimination and retaliation)
-Use the policies as the basis. If dealing with an employee subject to PPSM, find the PPSM section that applies to the issue
-Step II report: follow same guidelines on doing a fact finding as used for other types of investigations

9. California Fair Employment & Housing Act
Government Code §12940(k)
“It shall be an unlawful employment practice…for an employer…to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”
Case law holds that employers are obligated to conduct a prompt, objective, thorough investigation when they learn of a complaint or event that warrants investigation.
-This can be separate basis for finding of liability on part of employer (providing underlying claim is proven)
-Trend in cases/ what we are seeing
-Expectations on the part of jurors and employees: that employer will follow its own policies; that employer is responsible for controlling the behavior of other employees in the workplace.
-Employer must know (or should have known) about behavior to do something about it.

10. Title VII of the Civil Rights Act of 1964
Also prohibits discrimination and harassment on the basis of protected characteristics
Once employer knows of harassing/discriminatory conduct it must take prompt corrective action reasonably calculated to end the conduct
“The most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified. An investigation is a key step in the employer's response and can itself be a powerful factor in deterring future harassment. By opening a sexual harassment investigation, the employer puts all employees on notice that it takes such allegations seriously and will not tolerate harassment in the workplace. An investigation is a warning, not by words but by action.” Swenson v. Potter 271 F.3d (9th Cir. 2001)

11. The importance of a well done investigation
Well done investigations usually resolve issues at the lowest possible level.
Well done investigations send a message that the campus expects employees to comply with policies relating to unacceptable conduct.
Well done investigations usually result in the parties feeling that they have been treated fairly, no matter what the outcome.
Well done investigations will assist in defending the University if litigation is filed.
-How many times we have heard plaintiffs say they did not want to sue, but nobody responded to them at the pre-suit level
-Dispel myth that investigations done by UC employees will always result in finding in favor of the employee
-Worst thing you can do is to stretch to reach a conclusion that is not justified by the facts
-We can deal with findings

12. Help. Going Down for the Third Time
Help! Going Down for the Third Time! (or what can happen if you don’t investigate)
Failure to investigate can sink an employer’s ship
Example: Employee complained that her supervisor and store manager made lewd jokes about her breasts, and that the supervisor tried to kiss her. Employer did not investigate.
Result: Verdict for plaintiff of $1 in economic damages, $35,000 for emotional distress, and $50,000,000 in punitive damages (later reduced to $5,000,000)
Kimzey v. Wal-Mart Stores (1997)
107 F.3d 568
-Trend towards higher verdicts, even in smaller counties
-Juries think employers have had sufficient time to “get it”

13. Other problems caused by no investigation or a poorly done investigation
If a problem does exist, it will not be properly remediated
Sends a message to employees that policies don’t really mean what they say
May cause employee to be reluctant to report future incidents

14. Who Should Investigate?
Use an investigator who is trained in the skills that are required for interviewing witnesses and evaluating credibility.
Person complained of should not have supervisory authority over the investigator.
Investigator should be familiar with and follow employer’s investigation policies.
-All investigators need training
-OTJ or shadow training is a good approach to teach interviewing techniques and report writing

15. Who Should Investigate
Does not need to be an attorney
Investigator should be comfortable with his/her role:
Be a good listener
Be able to deal with potentially uncomfortable subject
Be discreet
Be capable of making findings in the face of conflicting evidence
Be able to write a concise and coherent report
May end up being deposed/are you comfortable with that, and with testifying in court?

16. Steering the Investigative Process
Does the investigator understand the issue(s) to be investigated?
Does the investigator understand his or her role as a fact finder, not an advocate for either side?
Does the investigator understand the time constraints?
Law requires a “prompt” investigation, measured on the totality of the circumstances
UC campuses must follow the time periods set forth in their local procedures
Is the investigator familiar with the applicable policies?
-Most assignments are done in writing and should define the issue to be investigated and the time frame
-UC Policy on responding to reports of sexual harassment requires that accused be given copy of written request for formal investigation or a full and complete copy of the allegations. Be sure to emphasize this must be kept confidential.

17. Avoid Catastrophe: Have an Investigation Plan
Gather background information before the investigation starts:
Identity of Complainant, Accused, and Primary Witnesses
Written complaint
Performance evaluations, recruitment documents, etc.
Prior allegations of similar conduct
Prior corrective actions
-In litigation: before we interview a witness or do a depo, we do our background work.
-Understand the work environment/what type of work is done in this department?
-Just because respondent has had prior corrective action of a similar nature does not mean current complaint is automatically valid…but it may indicate a pattern
-Do an outline of questions, timelines are often helpful particularly in retaliation cases

18. Avoid Catastrophe: Have an Investigation Plan
Most common order of interviews:
The complainant
Key witnesses
The respondent (accused)
Other witnesses identified by the complainant and the respondent
Follow up interviews as needed
-What if complainant, respondent or witness is out on medical leave? What if witness or respondent is no longer UC employee?
-Is it OK to do interviews by phone?

19. Avoid Catastrophe: Have an Investigation Plan
Where should I conduct the interviews?
Should I use a tape recorder?
Should I take notes on a laptop during the interviews?
What if someone shows up with an attorney?
-Importance of doing interviews outside of the direct workplace
-UCOP policy on sexual harassment investigations allows complainant and respondent to have a representative present. Investigator has discretion to allow witnesses to have representative present.

20. Diving into the Investigation
Notify the interviewees of their interview
Start each interview with the admonition
Identify your role as an investigator and fact finder
Emphasize importance of answering questions fully
Advise interviewee that the investigation is confidential
However, if litigation is filed the investigation materials may be subject to disclosure
Advise interviewee that it is against UC policy and illegal for anyone to retaliate against a person for making a complaint of harassment or discrimination. If interviewee believes he/she has been subject to retaliation, they need to notify proper source
-Wellpoint Health Networks v. Superior Court (1997) 59 CA4th 10: If employer is relying on fact that it did investigation as a defense (e.g. vicarious liability) it must turn over report and materials in disco. Adequacy of investigation becomes critical to issue of whether employer took appropriate remedial action.
-Write out your admonitions and use them consistently -

21. What do I do if the complainant says he/she really doesn’t want anything done about the situation?
“This is a catch-22 situation. If an alleged victim of sexual harassment asks a person of authority to whom she has reported the harassment to keep it confidential, and the employer attempts to reduce the emotional trauma on the victim by honoring her request, it risks liability for not quickly and effectively remedying the situation. A reasonable jury might hypothesize that it requires substantial emotional strength for a harassment victim to overcome the embarrassment and intimidation engendered by the abuse, report the harassment endured, and face becoming the subject of office schadenfreude. Too narrow a view of what is appropriate in reacting to an employee's conflicting needs for protection and for privacy may inhibit well-founded, valid complaints; too broad a view may unreasonably expand employers' duties beyond what Title VII requires and lead to unpleasantly gelid work environments.” (Gallaher v. Delaney, 139 F.3d 338 (2nd Cir. 1998)
Schadenfreude: satisfaction or pleasure felt at someone else's misfortune.
Gelid: very cold; icy
-Explain that even if complainant “just wants to make a report”, UC has obligation to ensure that workplace rules are not being violated
-Try to find out the cause for concern
Law requires employer to investigate and take action even if complainant doesn’t want this

22. Diving into the Investigation
Ask open ended questions
Ask follow up questions
Who, what, when, where, why
Ask questions designed to flush out evidence pertaining to motive
Look for contradictions and the reasons for them
Important of writing out questions in advance
CACI re credibility

23. Diving into the Investigation Tailor questions to the claims
Use the UC policy as your guideline
PPSM 12
Sexual Harassment Policy
Example: sexual harassment
Was the conduct in issue sexual in nature?
Difference between expletives and directing language at a specific person
Did the conduct unreasonably interfere with a persons’ work performance?
If behavior is physical, one instance might be enough
If behavior is verbal, one comment may not suffice
Example: “F you” vs. I want to F you.
Must consider totality of circumstances
-Does not matter if respondent did not intend to offend. Issue is whether the complainant was actually offended, and whether that offense is objectively reasonable
How did the behavior affect you? Did you leave work that day?

24. Diving into the Investigation Tailor questions to the claims
Was the conduct unwelcome on the part of the recipient?
Was there a previous relationship between the complainant and the respondent where such conduct was welcome? If so, was there a discussion/action that should have or did notify the respondent that such conduct was no longer welcome?

25. Diving into the Investigation Tailor questions to the claims
Example: Race discrimination in promotion
Questions for interview panel:
Were all applicants asked the same questions?
Why are your notes on the interviews of some applicants more scarce than notes for interviews of others?
What qualifications did the successful candidate have that the complainant did not have?
Did you know any of the candidates apart from the interview process?

26. Diving into the Investigation Tailor questions to the claims
Example: Race discrimination in promotion
Questions for complainant:
Did any of the interviewers say or do anything during the interview that you felt was racial in nature?
Why do you have that opinion?
Is there any reason other than the fact that you are of a different race than the person selected that you believe race was a factor in this decision?
Discuss fact that racial or gender bias is rarely overt, but at times complainants rely on false syllogism

27. Diving into the Investigation Tailor questions to the claims
Example: Retaliation claim
Did the complainant make a complaint of harassment or discrimination that falls within PPSM 12?
So long as complaint was made in good faith, it suffices
Did the complainant suffer a threat, intimidation, reprisal or adverse action related to employment?
Is there a causal connection between the two events?
Did alleged retaliator know about the protected conduct?
Was the employment action in progress before the complaint was made?
-Watch for “pre emptive strikes”

28. Avoid Catastrophe: Be consistent in asking basic questions of the complainant and the respondent
Fair, objective investigation
-Give both sides full opportunity to tell their story
-What to do with recalcitrant party
-What if respondent refuses to answer questions

29. Basic questions for both
Are there any documents, s, etc that you think I should review?
Why are those items relevant to this claim (if relevance is not obvious)
Are there any persons that you know of who have relevant information?
Who are they and what information do you think they have?
Have we discussed all of the key information relating to this claim/your response?
Probe issues regarding motive to be untruthful
Ask respondent (if claim denied): do you know of any motive for complainant to lie about this?

30. Opinion not backed by fact Credibility
What do I do about….
Hearsay
Rumor
Opinion not backed by fact
Credibility
Is there a motive to be untruthful?
Is allegation inherently implausible?
Demeanor and cooperation
Watch for cultural issues
Hearsay: A statement made out of court, offered for the truth of the matter asserted
Translation: what someone says someone else said
Cultural: witness not looking investigator in the eye as example
But: cultural issues do not excuse violation of policy
Rumor: disregard unless rumors are part of the claim (example= case where P did not want to be questioned by female attorney)
Credibility: very important in he said/she said cases. I

31. Investigative Slips Sink Ships
Example: Anonymous letter sent to employer alleges that a supervisor sexually harasses female employees. Investigator interviews female employees, but fails to evaluate credibility, differentiate between first-hand knowledge, hearsay, rumors, or mere gossip. Based on this report, employer fires supervisor.
Result: $1,000,000 damages to supervisor for wrongful termination
Kestenbaum v. Pennzoil Co.
(1988) 108 N.M. 20
Cotran v. Rollins Hudig Hall (17 Cal. 4th 93): so long as employer can prove that it had a good faith belief that employee violated rules, it will not be held liable for wrongful termination even if it turns out that conclusion re rule violation was wrong.

32. Stay the Course: Document and Retain Thorough Records
Investigator should take detailed notes and type them up shortly after completing an interview
Should interviewees be asked to sign summary statements?
Many trainers recommend this
Pros and cons
-No one can take verbatim notes. Best practice is to summarize shortly after interview
-Recording pros: clear record of what was said and how it was said
-Recording cons: has a chilling effect; tapes aren’t always audible; expense associated with transcription

33. Stay the Course: Document and Retain Thorough Records
You must retain ALL investigative materials
Do not discard drafts or working notes
Keep an organized file
Date your interview notes
Keep a chronology
Evidentiary sanctions for willful destruction of investigative materials
Attorneys know what to look for and they will ask for it!
Be familiar with UC retention policies
See policy on investigating sexual harassment claims. Title IX officer responsible for maintaining records. Others (such as campus counsel) must keep theirs also.
-Question for campus counsel as to when they think litigation hold letters should go out

34. Investigator’s Report
Introduction and overview
Identify persons interviewed, dates of interviews, and documents reviewed
Note anyone who refused to be interviewed or could not be interviewed
State reason for not interviewing person identified as possible witness
Use a separate heading for each allegation
Allegations should comport with claims in written complaint

35. Don’t sink your ship Make findings of fact and state the reasons for them!
Decision-make cannot make use of the report if there are conclusions but no explanations for the conclusions
If there is litigation, you will be expected to be able to articulate reasons for conclusions

36. Findings of Fact and Conclusions
Incorrect
Ms. Jones harassed Mr. Green because of his sexual orientation.
Correct
The evidence shows that Ms. Jones consistently yelled at Mr. Green about his work performance in front of other employees. This conduct started after a discussion about Proposition 8 shortly before the November, 2008 election. During the discussion with co-workers and Ms. Jones, Mr. Green stated that he and his domestic partner would like to get married. The quality of Mr. Green’s work after this discussion was no different than the quality of his work before the discussion. Ms. Jones was unable to point to any objective reasons for criticizing his work. Ms. Smith heard Ms. Jones state to someone on the phone that “the gay marriage issue is ridiculous”. This evidence supports a finding that Ms. Jones treated Mr. Green in an adverse manner only after she learned he was gay and wanted to marry his partner.
-Incorrect version is a conclusory statement
-Correct version show the conclusion and the reason for it

37. What do I do if I can’t tell who is telling the truth?
In most cases, there will be some corroborating evidence or a credibility issue that will help you make a decision
If you absolutely cannot tell, just state that:
Both parties were credible in their statements and explanations for their actions. There is no evidence to support a conclusion that [complainant] had a motive to fabricate the claim, yet there is also no evidence other than his statement that the event occurred. There are no co-workers who observed inappropriate conduct on the part of [respondent] towards [complainant] or any other man in the office. [Respondent] denies having any romantic interest in [complainant].

38. Avoid Catastrophe: make findings that relate to policy, not conclusions of law
If the claim alleges violation of a UC policy, use the policy language as your guide.
Do not use the FEHA, Title VII, Title IX, the ADA, the ADEA, etc as the basis for your conclusions
You are investigating whether there has been a violation of University policy or rules
Judge or jury decides whether there has been a violation of law, if suit is filed
-Did respondent engage in conduct that fits the definition set forth in the policy? Quote the policy and explain why or why not

39. Why is this an improper statement in an investigation report?
“Standards of Proof: Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race and color…. To find discrimination under Title VII on the basis of race, it must be shown that respondent took action in a discriminatory manner so as to eliminate African Americans from the department.”
Why is this an improper statement in an investigation report?

40. Why is this an improper statement in an investigation report?
“While I did not find your conduct discriminatory based on race or gender, your behavior created an office environment that was hostile and unwelcoming, particularly for a person of color or a woman with small children.”
Why is this an improper statement in an investigation report?

41. Recommendations for Corrective Action
Is corrective action required?
If there is no finding that violation occurred, no corrective action is needed.
If there is a finding, corrective action must be designed to prevent any future occurrences of similar conduct.
Report will be submitted to University official with authority to take the corrective action.
If report is incomplete, decision-maker should send it back.

42. Action May Be Required Before Findings are Made
Employers are obligated to take immediate and appropriate action when confronted with a complaint.
Be alert for need to take preliminary action
Pass on concerns to HR or Campus Counsel
Be careful about inadvertently penalizing either party
-HR and campus counsel should be involved in decision to place someone on administrative leave

43. Watch for storms clouds while investigation is pending
Example: CDC Employee alleges severe sexual harassment by co-worker, including leering, touching, and threatened rape. CDC undertakes a fact-finding investigation, but makes no effort to protect her or stop harassment.
“CDC cannot rest on its complex investigation process since the statute mandates remedial action designed to end the harassment CDC may not wait to act until it decides whether the complaint is valid.”
Bradley v. Dept of Corrections (2008) 158 Cal.App.4th 1612
-If you receive information from witnesses or parties during course of investigation that problems have arisen in the workplace because of it, alert the supervisor, who in turn should consult with HR and/or campus counsel

44. Close the Investigation
Tell complainant and respondent when investigation is completed.
Complainant is entitled to know whether allegations were sustained.
If allegations are sustained, complainant should be told that appropriate corrective action will be taken.
Privacy considerations for respondent

45. Smooth Sailing with Good Investigations
Less risk of offending conduct in the future.
Less risk of litigation.
If litigation is filed, less risk of finding that UC failed to take appropriate action.