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Presented by Nancy Sheehan
Porter Scott
(with appreciation to Derek Haynes and Katie Mola)
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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
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PPSM 12: Non discrimination in employment
◦ PPSM 12
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Policy language is consistent with state and
federal law prohibiting discrimination,
harassment and retaliation for engaging in
protected activity
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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.
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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.
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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
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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
PPSM 70
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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
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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)
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.
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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
1184 (9th Cir. 2001)
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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.
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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
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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
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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.
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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
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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?
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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
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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
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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?
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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
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“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)
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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
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Use the UC policy as your guideline
◦ PPSM 12
◦ Sexual Harassment Policy
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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
◦ 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?
Example: Race discrimination in promotion
Questions for interview panel:
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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?
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?
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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?
Avoid Catastrophe: Be consistent in
asking basic questions of the
complainant and the respondent
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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)
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Are there any persons that you know of who
have relevant information?
◦ Who are they and what information do you think
they have?
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Have we discussed all of the key information
relating to this claim/your response?
◦ Probe issues regarding motive to be untruthful
Hearsay
 Rumor
 Opinion not backed by fact
 Credibility
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◦ Is there a motive to be untruthful?
◦ Is allegation inherently implausible?
◦ Demeanor and cooperation
 Watch for cultural issues
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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
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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
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You must retain ALL investigative materials
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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!
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Be familiar with UC retention policies
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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
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Use a separate heading for each allegation
◦ Allegations should comport with claims in written
complaint
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.
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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].
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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
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“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?
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“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?
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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.
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Report will be submitted to University official
with authority to take the corrective action.
◦ If report is incomplete, decision-maker should send
it back.
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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
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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
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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
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Less risk of offending conduct in the future.
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Less risk of litigation.
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If litigation is filed, less risk of finding that
UC failed to take appropriate action.