Navigating the Waters of a Successful Workplace Investigation

1. Remember to dial in so you can hear the audio portion of the webinar. dial-in: 866-740-1260 access code 987-9289 Remember to mute your phone when not speaking Please do not put your phone on hold! Navigating the Waters of a Successful Workplace Investigation

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

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

4. U.C. Policies • PPSM 12: Non discrimination in employment • PPSM 12 • Policy language is consistent with state and federal law prohibiting discrimination, harassment and retaliation for engaging in protected activity

5. 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.

6. 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.

7. U.C. PoliciesProcedures for Responding to Reports of Sexual Harassment • 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 • 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

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)

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.

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 responseand 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 1184 (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.

12. 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

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.

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

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?

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

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

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?

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

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)

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

23. Diving into the InvestigationTailor 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

24. Diving into the InvestigationTailor 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 InvestigationTailor 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 InvestigationTailor 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?

27. Diving into the InvestigationTailor 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?

28. Avoid Catastrophe: Be consistent in asking basic questions of the complainant and the respondent

29. Basic questions for both • Are there any documents, e-mails, 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

30. 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

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

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

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

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 shipMake findings of fact and state the reasons for them!

36. Findings of Fact and Conclusions 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 Ms. Jones harassed Mr. Green because of his sexual orientation.

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

39. “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. “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

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

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.