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EMPLOYEES MUST COOPERATE IN EMPLOYER INVESTIGATIONS
By Jennifer Brown Shaw and Timothy L. Reed
The Daily Recorder
2013-02-20

An employer’s failure to take steps to prevent discrimination, harassment, or retaliation may lead to liability under the Title VII of the federal Civil Rights Act of 1964 or its California counterpart, the Fair Employment and Housing Act (“FEHA”). Every employer as part of an effective prevention program should implement a complaint procedure that allows employees to report perceived mistreatment to management. An employer should also promptly investigate any reported mistreatment.

The effectiveness of any investigation or policy naturally depends on the good faith cooperation of those involved. What happens when an employer encounters an uncooperative or dishonest complainant or other employee during its investigation?

The California Court of Appeal recently addressed the legitimacy of a company’s decision to discharge an employee found to be uncooperative and dishonest during an EEO investigation. In a welcome decision for employers, the court found that that termination was lawful. The court also held that statements made about the discharged employee were subject to the “common interest” privilege and could not form the basis of a defamation claim.

Firing an Accused for Dishonesty or Failing to Cooperate

John McGrory worked for Applied Signal Technology. One of his reports, Dana Thomas, complained to human resources that McGrory discriminated against and harassed her because of her sex and sexual orientation.

Applied Signal hired an outside attorney to investigate Thomas’s complaint. The Company directed McGrory to cooperate in the investigation. The investigator concluded that McGrory had not engaged in unlawful discrimination or harassment (whether an investigator should reach these kinds of legal conclusions is a topic for another day…). However, the investigator also found that McGrory violated Applied Signal’s sexual harassment and business/personal ethics policies by making off-color jokes and remarks based on race and sex. The investigator concluded as well that McGrory was “uncooperative and appeared to have intentionally misrepresented some facts during the course of the investigation.”

Applied Signal terminated McGrory’s employment based on his violation of Company policy, his being “untruthful” during the investigation and not participating in “good faith,” and the potential exposure to future liability McGrory’s conduct created.

McGrory sued Applied Signal for wrongful termination and sex discrimination. The trial court dismissed his claims. The California Court of Appeal agreed.

McGrory was an at will employee and subject to termination for “no reason or almost any reason, except for a reason that violates a fundamental public policy recognized in a constitutional or statutory provision,” the court noted in McGrory v. Allied Signal Technologies, Inc. Further, “refusing to participate in or cooperate with an investigation into a discrimination claim is not . . . a protected activity.” The court also concluded that “[w]hether to fire an employee for lying” during the course of an investigation is a “business decision [that is] not for the courts to second-guess as a kind of super-personnel department.” McGrory also failed to provide any “authority requiring an [e]mployer to retain an at-will [e]mployee until his conduct creates civil liability.”

Uncooperative Witnesses and Complainants

Employers also may require witnesses (and even the complainant) to cooperate in their investigations. For example, in TRW, Inc. v. Superior Court, the California Court of Appeal held that an employer may discharge an employee who refuses to answer questions during the course of a security investigation.

Similarly, in Harris v. Fulton-Dekalb Hospital Authority, a Georgia federal court held that a plaintiff’s “refusal to participate in a Title VII investigation is not statutorily protected activity.” The plaintiff refused to cooperate with investigators during an internal investigation of her own complaints regarding mistreatment by her supervisor. The Harris court reasoned that an employee may not claim unlawful retaliation where she “makes a claim of discrimination, refuses to cooperate in an investigation of that claim and, thus, provokes the employer to fire her for insubordination.”

Defamation and the “Common Interest” Privilege

McGrory also claimed the company’s HR Vice-President defamed his character by explaining to another employee that the company fired McGrory was fired for being uncooperative during an investigation. The court rejected McGrory’s defamation claim. Under California Civil Code section 47, a statement is privileged if made “in a communication, without malice, to a person interested therein . . . by one who is interested.” According to the court, the so-called “common interest” privilege “has been determined to apply to statements by management and coworkers to other coworkers explaining why an employer disciplined an employee.” The court concluded that the HR Vice-President’s explanation was privileged and made without malice (i.e., the statement was not made “in reckless disregard of [McGrory’s] rights”).

Conclusion

An employer does not have to establish “good cause” to fire an at-will employee who impedes the employer’s investigation. An insubordinate employee who impedes an investigation may not later claim that he was engaging in “protected activity.”

That said, employers taking action against uncooperative complainants or witnesses risk retaliation claims. Employers’ investigations must be conducted competently and in good faith. An employer may never pressure an employee to provide a false statement or otherwise provide information regarding any matter about which the employee has no knowledge during the course of an investigation. Additionally, an employee reluctant to answer questions, particularly a complainant, will not always be deemed insubordinate or lose protected status. Therefore, notwithstanding the McGrory decision, before taking disciplinary action against any employee involved in an investigation into misconduct, employers should consult with competent employment law counsel.

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