The Importance of an Investigation

Last week the Sixth Circuit (which hears appeals from Tennessee federal lawsuits) issued a decision, Roberts v. Principi, that confirmed the benefit of an employer conducting an investigation before making an adverse employment decision. 

Strictly speaking, no federal discrimination or retaliation statute says an employer must conduct an investigation.   Whether they say so or not, judges and juries expect employers to act “fairly” so they have grafted the obligation onto most discrimination and retaliation statutes.  Right or wrong, it is now ingrained in our jurisprudence that an employer takes unnecessary legal risks by making decisions without conducting some kind of an investigation.

In the Sixth Circuit decision the employee was a nurse anesthetist (“NA”) at the Johnson City, Tennessee VA medical center.  The facts are complex and unnecessary to the point so I’ll summarize by saying that the NA had issues getting along with her co-workers and complained to the federal EEO counsellor.  She alleged a co-workers and supervisors had been hostile and retaliatory toward her.  In the meantime, complaints about the NA surfaced (some valid, some biased) and the VA conducted an extensive investigation ultimately concluding the NA’s presence during surgery was a problem more of her own doing than anyone elses.  Based on this, the decsion-maker concluded the NA should be reassigned to another job.  The NA sued contending this reassignment was retaliatory.

After years of litigation, the decision came down to whether or not the reassignment was based upon the improper motives of the co-workers.  Had the decision-maker acted solely upon the biased complaints of the co-workers, the court said, that decision would have been retaliatory even if the decision-maker himself did not have it in for the plaintiff.  It’s a pretty well-settled but oft-confused principle (referred to as the “cat’s paw” theory) that if the formal decision-maker is “duped” by those who have discrimiantory motives, those are the motives that count.  To avoid this, employers can conduct an independent investigation.   It is important that the investigation not be a facade (more on this in the future) and the extent of the investigation should be proportional to the severity of the decision.

Here, the decision-maker relied upon an extensive investigation, one more extensive than the court had upheld in prior decisions.  Sure, some of the people interviewed had a “hidden agenda,” the court noted, but that alone was not enough.  “Where the employer’s decisionmaker tries to get all sides of the story, the employer will not be held liable solely because one side might harbor a hidden bias against the plaintiff employee.”  In this, it is vital to ask the employee for the employee’s version of events.

It is not uncommon for employees facing discipline or discharge to claim they are being discriminated against.  Oft times, the focus of the discrimination is the employee’s immediate supervisor.  (Sometimes the employee doesn’t assert discrimination by the supervisor until the lawsuit.)  How an employer makes the decision is often as important as the decision itself and a valid investigation can moot a world of potential liabilities. 

So when confronted with a situation where an employee’s conduct might lead to discipline, especially if that employee has complained or exercised any protected rights, the employer should conduct a neutral investigation, interview the employee, and come to a fair resolution before rendering a decison. 

A word of caution is necessary.  The decision itself is not a “published” decision so it is not in a sense “binding” on district courts but they will nevertheless almost always follow it until a later decision says not to do so.

FMLA Requests in the 21st Century

At the end of April, a federal court of appeals in Chicago, issued an interesting FMLA decision.  The employer used an automatic processing unit to handle the FMLA paperwork when an employee requested medical leave. The employer used FMLA forms with bar codes unique to each employee – the bar codes are automatically read by the processing unit’s fax machine and then sorted into the appropriate file. The employee (whose spouse also worked for the employer) claimed he sent in an FMLA leave request using his wife’s form (changing her name to his), that the processing unit lost it (in cyberspace), and therefore the employer imposed an unreasonable burden on his exercise of FMLA rights.

To this, the court replied: “an employee should know better than to submit a request for leave on another employee’s form, even if the other employee is the person’s spouse.” In the end, however, the court said the employer was not at fault as the request never could be found even in the spouse’s FMLA file.

Further, the employer was not unreasonable to the point of interfering with FMLA rights in refusing to give yet another extension of time for the employee to submit the form. This is the real value of the decision as it construes that part of the FMLA regulations which require extensions when “it is not practicable” to timely submit the FMLA request. 29 C.F.R. § 825.305(b). Refusals to grant repeated extensions are not an FMLA violation.

Usually, patience is a virute in dealing with FMLA issues.  Forgiveness by the employer is also sometimes legally mandated.  This case shows, however, that if employers are reasonable they can (and should) draw the line at giving repeated extensions to return the FMLA request forms.

While the decision isn’t binding authority for Tennessee employer it addresses a point they can, until a contrary decision is issued, rely upon.

The “new” but old retaliation claim

    On May 27, 2008, the Supreme Court held that there is an implied right of action for retaliation in 42 U.S.C.  1981.  CBOCS West Inc. v. Humphries, As to Tennessee employers, that had been the view of the Sixth Circuit for over 30 years (Winston v. Lear-Siegler, Inc., 558 F. 2d 1266, 1270 (CA6 1977), so, contrary to the splashy publicity, employers in this area will probably not see a major change (most attorneys who represent employees in race discrimination claims already add a 1981 claim when they file a Title VII lawsuit). 

    Two decisions from the Supreme Court have made lawsuits under section 1981 quirky from a procedural standpoint.  The original statute, passed after the civil war, provided that all persons have the same right to make and enforce contracts as did white persons.  After the supreme court narrowly interpreted the statute, Congress amended it in 1991 to broaden the kind of claims that could be brought.  Then, in 2004, the Supreme Court held lawsuits that could be brought because of the 1991 amendment could be filed within 4 years but claims that could have been brought under the statute before it was amended still borrowed state law which in Tennessee is 1 year.  Jones v. R. R. Donnelley & Sons Co., 541 U. S. 369, 383 (2004).  The reasoning behind these decisions is largely irrelevant to this topic so I’ll omit it.

    Two decsisions not terribly rooted in common sense mean that depending on the type of discrimination (i.e., hire v. fire) have very different time periods for filing a lawsuit.  In Tennessee lawsuits over hiring decisions must be filed within 1 year while lawsuits over terminations have four years.  So employers should keep all employment records, we advise, for at least four years.

    What the recent retaliation decision seems to foretell is that all retaliation claims (no matter the type) must be filed within 1 year (in Tennessee). The seven member majority reasons that in Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969), it had recognized a right to bring a retaliation claim based on a companion statute (section 1982) and that it had long interpreted sections 1981 and 1982 “similarly.”

    Sullivan was obviously issued well before the 1991 Civil Rights Amendments Act.   If, as the Court reasoned, a retaliation claim was originally recognized in 1969, that should mean that all retaliation claims under section 1981 borrow the state law statute of limitations (1 year in Tennessee) rather than the 4 year statute of limitations.

     The Cracker Barrel decision did not, however, specifically address the statute of limitation issue and different parts of the decision, if read out of context, could be read to support or deny the proposition that courts must borrow state statutes of limitations so it isn’t yet clear which limitations period applies.

    Employers in Tennessee therefore should assume the 4 year period applies until the issue is resolved.

    I should add that none of the above discussion affects lawsuits filed under Title VII, the “regular” employment discrimination statute.

A Little Common Sense

“A little common sense is not amiss in a discrimination case.”  Most of the time this advice is overlooked, at least it seems to be, by lawyers, judges, employees and, in particular, employees.  Here we’ll explore recent developments as they happen and try to help employers, particularly those in Tennessee (where I work).  It may not be pretty but as long as people do stupid things at work, there will be plenty to talk about.

This blog is intended to provide general guideance and it should never be taken as legal advice.  What an employer does in any particular circumstance depends on a careful analysis of the facts and legal principles.  I hope, however, that by providing some common sense, those decisions will be better informed and employers will have a better understanding of when to seek specific advice from legal counsel.