INVESTIGATING DISCRIMINATION AND HARASSMENT CLAIMS:
HOW TO STAY OUT OF HOT WATER AND DO THE RIGHT THING
June 27 – 30, 2007
Stephen J. Hirschfeld, Esq.
Curiale Dellaverson Hirschfeld & Kraemer, LLP
San Francisco, CA
I.
INTRODUCTION AND OVERVIEW
As an employer, you strive to treat your employees fairly and in a non-discriminatory
fashion. Fair treatment is an essential statement of your institution’s values. But no matter how
hard you try to treat people fairly, there are going to be times when someone believes otherwise.
When an employee feels his or her rights have been trampled on or your institution’s policies or
guidelines have not been applied fairly, your institution must be prepared to conduct a
comprehensive, objective, and professional investigation. An investigation may involve many
employees: the human resources department, campus counsel, internal auditors, campus security,
environmental safety and health officers, and ombudspersons. The investigative process permits
your organization to monitor itself – to ensure that its managers, supervisors, and employees
comply with both the letter and the spirit of federal and state laws, as well as internal policies
and guidelines.
Conducting an objective and thorough investigation minimizes the risk that an employee
will be disciplined or terminated for something he or she did not do. Perhaps things are not as
they initially seemed, and the institution can avoid making an incorrect, devastating, and costly
decision.
The purpose of an investigation is to gather facts so that the investigator can make a
credible determination as to what happened in a given situation. If someone is thought to have
violated a policy, guideline, or procedure, conducting an effective investigation helps reach a
conclusion that is based on the best facts available. Having accurate facts leads to a sound
conclusion.
Conducting an effective investigation is an acquired skill. People who conduct
investigations with skill know how to ask questions; they know how to extract information from
people who are reluctant to communicate. Sorting relevant from irrelevant details and being
comfortable making credibility resolutions are also skills that can be developed. People who
conduct investigations with skill rest secure in the knowledge that the people involved were
treated objectively and fairly, i.e., the way the person conducting the investigation would want to
be treated in the same situation.
A sound investigation serves the institution well. If the investigation reveals wrongdoing,
proper action can be taken. If it reveals no wrongdoing, a fair, objective investigation is good
proof that the institution took the complaint seriously. In either case, a sound investigation
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demonstrates that the institution takes its responsibility seriously and discharges that
responsibility as it should. The institution stands in good stead in the event of litigation.
II.
DETERMINING WHETHER AN INVESTIGATION MUST BE INITIATED
The purpose of conducting an investigation is to resolve a dispute and allow you to make
a determination as to what actually happened. Keep in mind that if there is no dispute over what
actually occurred – such as where the accused readily admits to what the accuser has accused
him or her of doing – then there is no need to conduct an investigation, even in a sexual
harassment case. Neither the courts nor the EEOC have taken the position that an employer must
conduct an investigation when faced with a complaint of sexual harassment. Rather, the
requirement is that an institution take immediate and appropriate corrective action to resolve the
dispute. How you accomplish that objective is left to you. If you are presented with a he said/she
said case, then, of course, an investigation will need to be conducted to resolve the dispute.
One of the challenges when conducting an investigation is determining whether you have
sufficient information to proceed with the investigation. For example, if you receive an
anonymous complaint – either through a hot line or an unsigned letter – your institution needs to
determine the seriousness of the allegations. Assuming they are serious and could be ongoing,
then you need to make a determination as to whether you have sufficient information to launch
an investigation. If the accuser has given you enough information to identify the accused and the
wrongdoing alleged, then you should use common sense and act in good faith in order to arrive
at a conclusion as to what occurred. A difficulty arises when there is no eyewitness and where
the accused denies the allegations. Without knowing who the accuser is, it may then be
impossible to assess credibility sufficiently to determine how to resolve that conflict. Even so,
document the process of deciding not to investigate and the reasons supporting that decision.
Similarly, if the investigation could only go so far, again document the reasons the investigation
was limited.
In addition, when you have a complaining party who is reluctant to go forward either
because she is concerned about retaliation or desires to keep the complaint quiet, you need to
decide how to proceed. In deciding whether to go forward despite the employee’s reluctance, you
need to make a determination as to the seriousness of the charges and the reasonable likelihood
that the misconduct will happen again, either to the complaining party or someone else. If you
determine there is a need to proceed despite the complaining party’s reluctance, you should
explain why it is important to proceed and give her assurances that you will do everything
reasonably possible to keep the information confidential. If it is possible to arrive at a conclusion
without having to use the complaining party’s name, you should consider doing that, but only if
you feel comfortable that the problem can be resolved in that fashion. For example, if a faculty
member is accused of using foul language in a classroom in front of 100 students, it is irrelevant
which student complained. The key issue is whether the faculty member said what he was
accused of saying. On the other hand, if the accusation involves one-on-one misconduct, there
may be no way to avoid using the complaining party’s name.
When determining the importance of proceeding with an investigation, the key factors to
consider include: (a) does the issue involve a fairly simple answer or is there something more
complex involved; (b) does it involve just this one employee or have other people been named or
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mentioned; (c) does it stem from a single incident or is there a pattern of conduct alleged; (d) do
your instincts tell you that this could be of major significance to your institution; and (e) before
reaching a conclusion, do you need more facts than the employee is able to provide.
III.
DECIDING WHO SHOULD CONDUCT THE INVESTIGATION
The two most important components in determining who should conduct the
investigation are whether the individual in question can be objective and has the right skills and
expertise to investigate and resolve the dispute. Keep in mind that with respect to objectivity, it is
not just whether in fact the person is objective but whether someone involved in the investigation
might reasonably perceive the person lacks objectivity. If the person conducting the investigation
has had a conflict or dispute with the accuser or the accused in the past, then someone else
should conduct the investigation. If the investigator is related to or has a close personal
relationship with a key party in the investigation, including a witness, then someone else should
conduct the investigation. If an employee is complaining about a performance review and the
complaint goes to a human resource professional who had discussions with the manager
concerning that same review – even if that HR professional believes he can be objective – there
will be an appearance of lack of objectivity. Trying to anticipate avenues of attack on the
investigator’s credibility and objectivity is a critical part of the analysis. It is often a good
practice prior to launching an investigation to ask the accuser whether he or she feels
comfortable with the investigator in question. If the answer is no, then the institution is well
served to find a replacement.
Choosing a skilled investigator who possesses the right skills and experience is the other
important part of the equation. One of the major ways to attack an investigation is to claim
negligence. As part of such a claim, the allegation is made that the investigator does not have the
right knowledge, skills or expertise to conduct the investigation. In order to avoid these types of
allegations, it is becoming more common then ever before to ensure that all appropriate
investigators have gone through a certified training program to ensure that they do have the
appropriate skills and expertise. Since many different individuals on your campus may be
conducting investigations, make certain that all of those appropriate individuals have received
that training. That includes people such as: human resource and student affairs professionals,
ombudspersons, in-house counsel, campus security, campus auditors and appropriate faculty
committee members.
The time to consider retaining an outside investigator occurs in four distinct situations.
First, where the issues raised are unique and complex and you do not have the appropriate
individual on your campus with the right knowledge and expertise to investigate and resolve the
dispute. Second, where the investigation is so complex and takes so much time that you do not
have the staff to dedicate to the investigation. Third, where there is either a direct conflict or the
appearance of potential conflict and you want to ensure the investigation is perceived as
objective and has integrity. Those situations typically arise where an accusation is made against a
high-level administrator such as the institution’s president, dean, director of human resources or
general counsel. Finally, if the situation is so politicized that an in-house investigation will be
challenged as tainted or any result could put the investigator’s job at risk, you may want to
consider hiring an outside investigator.
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If you are utilizing legal counsel to conduct the investigation, you need to decide up front
whether the investigation will be considered privileged or not. As a general rule, if your legal
counsel is standing in the shoes of your campus investigator and, as a result, you will be using
your attorney’s findings in determining whether any disciplinary action may be taken with
respect to a complaint, the investigation cannot and should not be considered privileged. In fact,
if a lawsuit is filed as a result of the investigation, you would not only want your attorney to be a
witness but you will want his or her investigation report to be an important exhibit in the
proceedings in order to establish the process that was utilized and the findings upon which the
institution relied. Typically, investigations will only be considered privileged if they are being
done in conjunction with the filing of a lawsuit or charge of discrimination and in-house counsel
or your attorney has been retained to determine the strength or weakness of the legal claims.
IV.
TIPS ON CONDUCTING AN INVESTIGATION
A.
Proof of Misconduct
For most employers faced with the decision of whether to terminate an employee for
alleged misconduct, “proving” in the judicial sense of the word (i.e., by establishing “beyond a
reasonable doubt” or with a “preponderance of the evidence”) that the misconduct actually
occurred is neither practical nor plausible. Employers conducting internal investigations
generally do not have the resources, time, or experience to conduct the kind of extended
discovery that occurs in court litigation. Fortunately, the majority of courts recognize that
imposing judicial-like burdens of proof on employers making decisions in the workplace is not
legally required. The same courts agree, however, that an employer’s investigation and decision
must be judged by some standard to ensure that its actions are not arbitrary, capricious, or illegal.
The standard that has been adopted by most jurisdictions for judging an employer’s
decision to terminate an employee for alleged misconduct is one that derives from the notion of
“good cause.”1 The standard can be paraphrased as follows: in order for an employer to terminate
an individual for alleged misconduct, the employer must make a good faith determination that
sufficient cause existed based on reasonable grounds.
The rationale behind this standard is best explained by the California Supreme Court’s
decision in Cotran v. Rollins Hudig Hall International, Inc.2 The plaintiff Ralph Cotran was
employed by Rollins Hudig Hall International, Inc., an insurance brokerage firm, as a senior vice
president in charge of its West Coast operations. In 1993, the firm received reports that Cotran
was sexually harassing two other female employees. The company's director of human resources
investigated the reports. In separate interviews, that they subsequently reduced to written
statements, both women related a number of similar incidents, including allegations that Cotran
had made obscene phone calls to them at home and work, exposed himself to them while in the
office, and masturbated when he was alone with them in his car.
1
See, Pugh v. See’s Candies, Inc., 203 Cal. App. 3d 743 (1988). In a wrongful discharge action by an employee based
on breach of contract, good cause for termination means a fair and honest cause or reason regulated by the good faith of the
employer; Crozier v. United Parcel Service, Inc., 150 Cal. App. 3d 1132 (1983). The good cause determination needs to balance
management discretion against the interest of the employee in maintaining employment.
2
17 Cal. 4th 93; 69 Cal. Rptr. 2d 900 (2002)
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The president of the company later met with Cotran to discuss the allegations. He
explained that an investigation would be made and that its outcome would turn on credibility.
Cotran denied the accusations. He said nothing during the meeting about having had consensual
affairs with the two women and could not explain the basis for the complaints. Following the
meeting, Cotran was suspended pending further investigation.3
The company’s internal investigation lasted approximately two weeks. During this time,
the employer interviewed more than 20 witnesses, including five that Cotran suggested. The
company concluded that the two women appeared credible. Although no other employees
accused Cotran of harassing them while at Rollins, two female employees stated that they had
also received strange phone calls from Cotran. The two women who had brought the complaints
signed affidavits repeating the details in their original, unsigned statements. Based on the
information gathered during the investigation, and the company’s credibility resolutions, the
company concluded that it was “more likely than not” that the harassment had occurred, and
terminated Cotran.4
Cotran sued Rollins for wrongful discharge. He claimed that the company had impliedly
agreed to discharge him only for just cause, and that cause for discharge did not exist since he
said he did not harass anyone. Cotran claimed that he had consensual sexual relationships with
the two accusers. He said that he had not disclosed this during the company’s internal
investigation because he felt “ambushed.” The trial court rejected Rollins’ defense that its
decision was lawful because it had been reached honestly and in good faith. The court instructed
the jury, “What is at issue here is whether the claimed acts took place. The issue for the jury to
determine is whether the acts are in fact true. Those are issues that the jury has to determine.”5
The jury found that Cotran had not engaged in any of the behavior on which his termination was
based, and awarded him $1.78 million in damages.6
On appeal, Rollins Hudig Hall argued that the jury verdict was improper because the jury
should have been instructed that an employer who terminates an employee for misconduct need
not prove the misconduct in fact occurred. Rather, the firm argued, an employer need only
reasonably and in good faith believe that the employee engaged in conduct that was
inappropriate in the workplace. The California Supreme Court agreed and overturned the jury
verdict. Relying on decisions from California and other states that define “just cause,” the court
ruled that “good cause” for termination does not depend on a jury finding that the fired employee
actually engaged in the misconduct, but merely requires that the employer act with “a fair and
honest cause or reason, regulated by good faith.” To require the employer to be correct about the
facts would interfere with the wide latitude an employer needs to make decisions involving highranking employees. The court stated:
The decision to terminate an employee for misconduct is one that
not uncommonly implicates organizational judgment and may turn
3
Ibid, at 903.
4
Ibid.
5
Ibid, at 904.
6
Ibid.
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on intractable factual uncertainties, even where the grounds for
dismissal are specific. If an employer is required to have in hand a
signed confession or an eyewitness account for the alleged
misconduct before it can act, the workplace will be transformed
into an adjudicatory arena and effective decisionmaking will be
thwarted. . . .
The proper inquiry for the jury . . . is not, “Did the employee in
fact commit the act leading to dismissal?” It is “Was the factual
basis on which the employer concluded a dischargeable offense
had been committed reached honestly, after an appropriate
investigation and for reasons that are not arbitrary or pretextual.”7
Other wrongful termination cases prior to Cotran have articulated similar standards for
judging an employer’s decision to terminate an employee for misconduct.8
The only apparent distinction in the standards articulated by these cases is semantic. That
is to say, some capture the objective arm of the standard with a phrase different from “reasonable
grounds.” For example, in one case, a district court uses the phrases “substantial evidence,” and
“credible support,” and in another, the court uses the phrase “reasonable basis.”9 All these cases
agree that whether the employer was certain that the misconduct occurred is not determinative.
B.
What Constitutes “Reasonable Grounds”?
As noted in Cotran, the “reasonable grounds” standard is an objective one. Furthermore,
based on the body of cases as a whole, the standard is one for which there is no set formula for
evaluation. That is, whether the employer’s determination was based on “reasonable grounds”
must be evaluated on a case-by-case basis.
In evaluating whether an employer had reasonable grounds for terminating an employee
7
Ibid, at 909.
8
See Southwest Gas v. Vargas, 111 Nev. 1064 (1995) [“allowing the jury to trump the factual findings of an employer
that an employee has engaged in misconduct rising to the level of ‘good cause’ for discharge, made in good faith and in pursuit of
legitimate business objectives, is a highly undesirable prospect.”]; Maietta v. United Parcel Service, Inc., 749 F. Supp. 1344,
1363 (D. N.J. 1990), in which a United Parcel Service employee was terminated for allegedly falsifying and directing other
employees to falsify production records; Crimm v. Missouri Pacific R. Co., 750 F.2d 703 (8th Cir. 1984); Rulon-Miller v.
International Business Machine, 162 Cal. App. 3d 241, 253 (1984), in which the court held that “probable cause” would have
been some reasonable basis for assuming that a significant company interest was at stake; Kestenbaum v. Pennzoil, 108 N.M. 20,
27 (1988), in which the New Mexico Supreme Court foreshadowed the ruling in Cotran, and upheld the termination of a manager
for sexual harassment because the employer “had reasonable grounds to believe that sufficient cause existed to justify the
defendants’ actions in discharging the plaintiff”; and Simpson v. Western Graphics Corporation, 293 Or. 96, 643 P.2d 1276
(1982), in which employees were terminated for allegedly threatening violence against another employee.
While there are some cases that appear to impose merely the good faith standard (Benishek v. Cody, 441 N.W.2d 399,
401 [Iowa, 1989]) or a standard based on mere suspicion (Caldor Inc. v. Bowden, 330 Md. 632, 646, 625 A.2d 959 [Md. 1993]),
only one case was found endorsing a higher standard than “good faith based on reasonable grounds.” In Scherer v. Rockwell
Int’l., 975 F.2d 356, 359-360 (7th Cir. 1992), the employee’s contract stated the company could terminate him only if he was
found guilty of gross default or misconduct, thus the court refused to apply the good faith based on reasonable grounds standard.
The court implied, however, that absent the employment contract provision providing for proof of actual guilt, the good faith
based on reasonable grounds standard would have applied.
9
Maietta, 749 F.Supp. at 1363; Crimm, 750 F.2d at 713.
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for misconduct, the primary focus will be on the quality of the employer’s investigation of the
allegations. Based on the New Mexico Supreme Court’s early decision in Kestenbaum v.
Pennzoil,10 it is clear that merely initiating and carrying out an internal investigation is not
enough. Pennzoil investigated the charges of sexual harassment against Kestenbaum by
interviewing past and present female employees and giving him an opportunity to rebut the
allegations. The court determined, however, that the investigation and the standards of the
investigators could not support a finding that Pennzoil acted on reasonable grounds in dismissing
Kestenbaum for alleged sexual harassment. First, the court found the results of the investigation
were deficient because they failed to “differentiate between firsthand knowledge, attributed
hearsay, or mere gossip or rumor.”11 Furthermore, the court found Pennzoil’s investigators did
not observe the standards of good investigative practice and that Pennzoil made no efforts to
evaluate how the investigation was handled.12 Thus, in conducting an internal investigation,
employers must adhere to a policy of good investigative practices as well as taking the time to
adequately review the credibility and weight that ought to be given to the evidence gathered.
An example of a successful internal investigation is illustrated by Maietta v. United
Parcel Services Inc. [UPS].13 The plaintiff in Maietta was one of 15 employees terminated for
integrity violations, including allegedly falsifying and directing other employees to falsify
production records. The terminations were a direct result of a district-wide investigation initiated
by UPS. The internal UPS investigators interviewed over 70 UPS management- and supervisorylevel employees over a one-month period. Employees were interviewed separately at an off-site
location to ensure confidentiality. Employees also were asked to sign written statements based on
their interviews.14 The investigation file developed on the plaintiff contained allegations from a
number of sources implicating him in wrongdoing and signed statements from two employees
directly implicating him in integrity violations. The plaintiff was interviewed and confronted
with the allegations, which he denied. After reviewing his investigation file, interview statement,
and the statements of the two employees, the district manager decided to terminate him. The
court found that UPS’s investigation supported “a good faith determination that good cause
existed to discharge Maietta as a matter of law.”15
C.
Interviewing the Accuser and the Accused
When interviewing the accuser, keep in mind you will often not have the ability to
prepare for that interview in advance. As a result, there should be four main objectives
accomplished during that meeting. First, you want to identify all of the issues in dispute.
Sometimes, this is easier said than done. Make certain that you ask questions in such a way that
the accuser spells out all of his problems or conflicts. This will avoid having to re-interview the
10
108 N.M. 20 (1988).
11
Kestenbaum, 108 N.M. at 28.
12
Ibid.
13
Maietta, 749 F.Supp. 1344 (D.N.J. 1990).
14
Ibid., at 1353.
15
Ibid., at 1364. See also Crimm, supra at 713. Missouri Pacific presented substantial evidence that appellant was
discharged for good cause because they conducted a rather detailed investigation, prepared a formal investigation report and
sought advice from legal counsel.
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accuser a second time and minimize the chance of having to re-interview the accused and other
witnesses. Second, you want to gather material and relevant facts. The most effective way to
accomplish this is by asking questions that call for facts rather than conclusions. Try to start your
questions with: who, what, when, where, why or how. These questions, by definition, will lend
themselves to gathering material information. Try to avoid asking questions that are conclusory
such as “Did he sexually harass you?” Instead, focus on what he did, when he did and why he
did it. Third, consider whether you will really need to conduct a formal investigation or whether
there is an informal way to resolve the problem. One effective technique is to ask the accuser
what he or she would like to see done. That person needs to understand, however, that the final
decision as to the way the matter will be handled will be for the university investigator to decide,
not the accuser. Finally, use the initial meeting as an opportunity to instill confidence in your
institution and in you as the investigator. To the extent the accuser has any concern about you
conducting the investigation or a feeling that somehow the institution will not handle the matter
in an objective and fair fashion, you need to find that out right up front. As a result, you should
consider asking the accuser, “Is there any reason why you feel I can’t be fair and objective?” If
the person is uncomfortable with you up front, find someone who she is comfortable with and
who is capable of doing the investigation. Also make certain to discuss confidentiality.
One of the major avenues of attack in an investigation is that individuals’ reputations
have been harmed and that defamation has occurred, either as a result of rumors spread by the
accuser or comments made by the investigator, or both. As a result, that individual should be
instructed to limit dissemination of any further information concerning their complaint to those
people having a legitimate need to know. Explain what you mean by that. Make sure they
understand that this information will be jealously guarded, both by you as the investigator, as
well as by them and that it could compromise the investigation by discussing this matter further
until the investigation has been completed. Finally, you should consider preparing a memo to the
accuser confirming what was discussed. Specifically, your memo should include: identification
of all the issues or disputes; a review of the key facts the employee has provided; confirm that
these are all the issues that are raised; identify the name of the person doing the investigation and
confirm impartiality and fairness; offer a very general roadmap of the investigation; and then
outline the institution’s expectation for the employee in terms of her duty to cooperate and
obligation to maintain confidentiality.
The difference between your interview with the accuser and your interview with the
accused is that you will have much more time to plan and organize your thoughts before
interviewing the accused. Use this time wisely to organize your thinking and the approach that
you will be taking in the interview. While many investigators prepare their questions in advance,
you should consider not doing that. Instead, focus on outlining the key issues that you want to
discuss but avoid preparing detailed questions ahead of time. This will allow the interviewee to
feel more comfortable and provide a more positive chemistry instead of creating a courtroomlike atmosphere. As part of your questioning, the best way to start is with very broad questions,
and then more to more narrow questions as you need to. Often times, it is advisable to start with
questions like: “What is she like to work with?”; “Does it surprise you that she has complained
about you?”. The answers to these questions will allow you to move on to more narrow
questions. Try to use open-ended questions and avoid leading questions. While there is nothing
legally wrong with using a leading question during an interview, leading questions are lawyerlike and often send the wrong message. They appear to be very confrontational and can often
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miscommunicate that you have already made up your mind. Try to avoid using tough questions
upfront but instead develop chemistry and rapport and then move to the more difficult questions
once the interview gets going. Also make certain to commit the interviewee to a story and a
chronology. You may want to consider using timelines to help ensure that you have the story and
the chronology straight. By doing this, you will help assess the individual’s credibility and
resolve conflicts that may arise.
Finally, be prepared when the accused denies wrongdoing. At the time of the interview,
you should explore ill motive. Make certain the accused understands that if he or she is denying
the accusations, maybe there is a good reason why the individual is making these charges up.
Consider asking questions like: “Do you have any idea why she would make this up?”; “Have
you ever had conflicts or problems with him in the past?”. If there is an ax to grind, this will
allow you to identify it.
D.
Interviewing Witnesses
Keep in mind that there are many different witnesses in this world; they are not all
created equal. What this means is that it is important to remember not only what evidence you
receive, but also who gave it to you. For example, if you have a witness who is reluctant to
cooperate because he is trying to protect his friend, and if that person ultimately gives you
information that contradicts something his friend has told you, that makes the information he
provided to you quite credible. On the other hand, if he is trying to protect his friend and he gives
you information that helps that person, you should take that information with a grain of salt and
try to find corroborating evidence.
The opposite is true with a witness who has an ax to grind. If that individual provides
information to you which supports someone they don’t like, common sense dictates that
information is reliable. On the other hand, if she gives information which predictably contradicts
her enemy, find corroboration for that because she would have every reason to want to hurt that
individual.
Finally, when you have a witness who loves the limelight – someone who likes being in
the interview a little too much – that individual often has a tendency to embellish his or her story.
As a result, you should generally interview that person relatively quickly, try to get key
information you need from him and then close the interview and try to find corroboration.
E.
Note-Taking, Tape Recording and Witnesses Present During Interviews
The best possible way to preserve evidence received during an interview is to have that
interview video-taped or tape recorded. However, this presents two problems. First, many
witnesses will be reluctant to open up when they know their interview is being taped. They end
up getting very defensive and this can be counter-productive. Second, many states are two-party
consent jurisdictions. What this means is that both parties to the conversation must knowingly
consent to having the interview taped. As a result, you need to do a cost/benefit analysis to
determine whether or not having the information taped is so important that you are willing to risk
creating a somewhat defensive atmosphere in the interview.
In place of this, some investigators like to have a witness present to take notes. While that
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certainly is preferable to having to take all the notes yourself, this can also make a witness
defensive. It may look like you are trying to “gang up” on the individual which can also create a
negative dynamic. In most situations, the best course of action is to take notes yourself and then,
following the interview, type up your notes based upon what you have written down and what
you can remember. If you are going to use this approach, make certain to type up your notes
immediately following the interview so the interview is still fresh in your mind and so that no
one can accuse you of adding things later which weren’t actually said during the interview.
F.
Sorting Relevant from Irrelevant Evidence
Much of what you will gather in an interview will turn out to be irrelevant. But don’t
make the mistake of trying to sort relevant from irrelevant evidence at the beginning of the
investigation. That should be done at the end. You need to see how the case plays out and what
types of disputes exist before deciding whether or not a piece of evidence – even a very minor
one – might turn out to be relevant. Sometimes, irrelevant information can turn out to be relevant
depending upon the way the case develops. For example, if the accused lies about her
background and other issues which really are not directly relevant to the case, that still goes to
her lack of credibility and turns evidence which otherwise would be irrelevant into relevant
evidence. The key thing to do is to stay very focused and organized during your interviews and
to keep detailed records and notes. That way, at the end of all of the interviews, you can go
through each piece of information you have and ask yourself the following questions. First, does
this information help me better understand something about this dispute? If the answer is no, it is
irrelevant. If the answer is yes, then you must ask a second question: Does this information come
from a credible and reliable source? If the answer is no, you should not consider the information.
G.
The Fifth Amendment, Right to Counsel, Right to Union Representation
As a general rule, courts have taken the position that there is no Fifth Amendment right
during internal investigations conducted by an institution unrelated to the police department.
This is also generally true when you are a public institution. On the other hand, if your
investigation is being done in conjunction with the police department or prosecution, you may be
found to be standing in the shoes of a public official and therefore, you may trigger Fifth
Amendment rights. The most effective way to avoid these types of disputes is to have a clearly
written policy for your faculty, staff and students which makes it clear that they have an
obligation to cooperate in an internal campus investigation. The type of language typically
recommended includes:
Failure or refusal to cooperate in or interference with a university
investigation is grounds for discipline up to and including
termination.
When an accuser refuses to cooperate, the best approach is to start by getting him to understand
that if he does not cooperate in the investigation and does not provide you with any information
he has, then, of course, that information can’t be considered as part of the investigation. So if
they haven’t done anything wrong or they have an explanation for their conduct, it is in their
personal interest to provide you with that information. Without that information, you cannot
consider it. If the person continues to refuse to cooperate, then you need to explain that his
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failure or refusal to cooperate in the investigation could be independent grounds for discipline up
to and including termination. In other words, even if he did not do what he has been accused of,
he is putting his job at risk. In those types of situations, most people will choose to cooperate.
Similar to issues arising under the Fifth Amendment, assuming you are acting purely on
behalf of your institution and without the police department’s involvement, there is no right to
counsel during the interviews. Make certain you have no internal policies or procedures that
grant this right. Of course, if your policies do, then you will have to honor them. The one
exception involves the right to union representation. If an employee is in an interview with a
member of management and if that interview could lead to disciplinary action, then she has a
right to union representation. The issue sometimes confronted on college campuses is whether
you should “read” these rights to an accused prior to the interview. There is no legal obligation to
do so. Most colleges will wait until the employee raises the issues. Then, if he wishes to have
union representation, you take a break and allow him to have someone present. The only
difficulty with that, however, is that there is often a long break in the interview which allows the
accused a little too much time to think. If you believe it is reasonably likely that the employee
will insist upon union representation, the best advice is to have the union representative in the
room from the very start. If there is union representation present, make certain that the union
representative does not interfere with your questions or interfere with the dynamics of the
interview. If that person wishes to ask questions, tell him politely but firmly that he should wait
until your interview is completed and then he can ask any questions he desires.
V.
INTERIM ACTION
In cases where there are serious acts of misconduct alleged – campus violence or threats
of violence, retaliation or criminal misconduct – you may need to consider removing the accused
from the campus pending the outcome of the investigation. Keep in mind that if this is done, it
will not be for disciplinary purposes but instead to help facilitate proper handling of the
investigation and to minimize problems that may result from the investigation.
If you are considering taking this step, the first question you need to ask yourself is
whether you should remove the person from the campus before or after you have interviewed
her. As a general rule, it is advisable to interview the accused first and then place her on leave.
However, if you are concerned about your safety, the best advice is to remove the person first
and worry about the investigation later. You then need to ask yourself whether removing the
person from campus will help make things better or worse. There is a small group of individuals
who will believe that you have found them “guilty” even before the investigation has started and
simply will not understand the notion that the leave is being done for administrative and not
disciplinary purposes. In some situations, you may want to consider having a risk assessment
conducted by an appropriate expert to determine the likelihood of a negative reaction and also
determine what security steps should be taken during and following the interview to protect the
safety and health of those on campus. In order to minimize conflict, you should be prepared to
discuss with the accused why removing him from campus pending the outcome of the
investigation is in the best interest of everyone involved, including the accused. For example, if
the accused is planning to go on a business trip with the accuser, he should understand that by
not going on that trip, he minimizes the risk that the accuser might claim retaliation occurred
while off campus. You also need to consider what, if anything, should be said to co-workers,
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administrators, students and vendors about the employee’s departure. The best advice is to work
out those details with the accused to avoid telling “two different stories” and to minimize the
chances of injury to her reputation. Finally, you need to decide whether the leave will be granted
with or without pay and benefits. While there is no legal prohibition on withholding pay and
benefits, the better course of action is to continue to permit the employee to receive both. That
way, you are first communicating that the leave decision is not punitive or disciplinary and you
also have much more ability to place demands on the employee while he is off work since he is
still receiving compensation.
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