Don’t Taint Your Investigation

By Beth Ann Lennon

The importance of a thorough, independent investigation prior to taking adverse employment action was reaffirmed this week by the Fifth Circuit in Brown v. Walmart.  Brown sued her employer, Walmart, for retaliation when she was terminated just six or seven weeks after reporting her store manager for allegedly soliciting sex from other employees.  Despite the manager-in-question (falsely) informing the investigator at the time of the incident that Brown had violated another store policy, and allegedly threatening other participants in the investigation with termination if they did not corroborate his statement, Brown’s claims against her employer were dismissed (and the dismissal was upheld).  Why?  First, those witnesses who were instructed to lie refused to do so – so the manager’s efforts to taint the investigation were not effective.  Second, the investigator did not rely on the statement made by the store manager in determining whether a policy violation had occurred or what the repercussions for that violation should be.  Instead, he conducted a full and independent investigation and came to his own conclusion. 

It probably didn’t help her case that Brown admitted to the policy violation that resulted in her termination but there are still some important lessons to keep in mind from this case.  Number One: Do not underestimate the importance of training.  All employees must know they are expected to participate in any investigation you may undertake.   Make clear that this expectation includes an obligation to be truthful and to report any actual or threatened retaliation they may experience as a result of their participation.  Number Two: Make sure you have someone (or, even better, a team) ready and able to conduct an independent investigation.  The Court made clear that “typically, an investigation cannot be said to be independent enough to break the causal chain when a supervisor with retaliatory motive participated in that investigation.”  If this investigator had just taken the store manager’s word for what had happened, this case would have turned out very different.  Avoid tainting your investigations by relying on the word of the wrong person.  Number Three: If you have done your job right, just because an employee has engaged in protected activity does not mean that she is insulated from all future adverse employment actions.  Having the proper processes in place before a situation arises is the best way to make sure we can win that retaliation claim for you in circumstances such as these.