Finding the Facts - Disciplinary and Harassment Investigation

judgment in favor of Defendants, and Thomas appealed. The district court found Plaintiff’s 30 alleged adverse employment actions were “petty workplace gripes” that did not rise to the level of an adverse employment action. The Ninth Circuit Court of Appeals disagreed with the district court and held that a reasonable juror could find that these adverse actions, even if viewed in isolation, could deter protected speech. Further, there was evidence that some of the actions were taken as part of a more general campaign, and thus may have greater materiality than if viewed in isolation. Notably, Plaintiff alleged that her supervisor initiated three investigations in retaliation for exercising her protected speech. The County presented evidence that it would have initiated two of the investigations against Thomas regardless of whether she engaged in protected speech. One investigation was initiated because an employee alleged that Thomas and other County employees fabricated negative performance reviews in order to push her out of the job. The second investigation was initiated because Thomas improperly accessed and removed files, an undisputed violation of department policy. Thus, the district court properly found no plausible inference of retaliation as to these two investigations and the Ninth Circuit agreed. However, the third investigation presented a factual dispute. Thomas's supervisor initiated an investigation for "rude and discourteous emails," but conceded that no words or phrases in the emails violated policy. Only the tone of the emails was objectionable. Because a reasonable juror could have found this justification was subjective, thin, and pretext for retaliation, this issue should have survived summary judgment. Note: Retaliation claims often are based, in part, upon an allegation that a district initiated an investigation against an employee for retaliatory reasons. This case illustrates the importance of thoroughly documenting the reasons for initiating an investigation and for establishing a legitimate basis for initiating an investigation, such as third-party complaints, substantial evidence, or other credible information. Court Affirms Good Faith Termination of Supervisor Who Harassed Subordinates after Month-Long Reasonable Investigation The Court of Appeal has held that there was no triable issues of fact as to whether an employer, acting in good faith and following an investigation that was appropriate under the circumstances, had reasonable grounds for believing an employee had engaged in alleged sexual harassment. John Silva was a supermarket store manager for Lucky Stores, Inc.. Silva was discharged following a month-long investigation, based on reports of two female employees that Silva had sexually harassed them. Lucky’s human resources representative interviewed 15 Lucky employees, recorded information on witness interview forms and/or obtained written statements and gave Silva an ample opportunity to present clarifying or challenging information. Based on these interviews and statements, Lucky’s review board concluded that Silva had violated the store’s sexual harassment policy and procedures, and terminated his employment. Silva sued Lucky for breach of an implied contract not to terminate except for good cause and breach of implied covenant of good faith and fair dealing. Lucky filed for summary judgment on the

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