HR Abdicates Control

By Bill Wright

The Second Circuit Court of Appeals recently taught employers what can happen when Human Resources abandons an investigation half-way through. In Vasquez v. Empress Ambulance Serv., Inc., No,. 15-3239-cv (2d Cir. Aug. 29, 2016), a co-worker texted the plaintiff an obscene picture of himself, and the plaintiff brought a tearful, written complaint to HR. The co-worker, knowing that he would be reported, allegedly printed some “racy” texts from some third person and altered them to suggest the plaintiff had sent them.  While the plaintiff waited in the office for the investigation, the employer switched sides, accepted the co-worker’s story that he had a consensual relationship with the plaintiff, and fired the plaintiff.  HR wouldn’t even look at the text on the plaintiff’s phone.

The issue before the court was, assuming that the perpetrator created the false text messages to get the plaintiff fired, is the company responsible for the co-worker’s retaliation – even when the co-worker is not a supervisor? Answer:  yes, of course.  Negligence in investigating allegations of misconduct creates employer liability.  It’s as if HR turned the disciplinary decision over to the plaintiff’s co-worker.