Finding the Facts - Disciplinary and Harassment Investigation

recommended practices for conducting an investigation; (6) investigator qualifications and training; (7) type of witness questioning (8) making credibility determinations; (9) burden of proof required in making findings; (10) making factual and not legal conclusions; (11) documentation of investigations; and (12) special issues, i.e. when the target of harassment asks the employer not to do anything or when investigating an anonymous complaint. Please refer to Appendix N, which contains an URL link of the Guide.

W HO S HOULD B E A SSIGNED TO C ONDUCT THE A DMINISTRATIVE I NVESTIGATION ?

Section 4

A. S ELECTING THE R IGHT P ERSON FOR THE J OB

Before an investigation can begin, an investigator must be selected. The investigator is responsible for:

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Conducting the investigation

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Evaluating the facts

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Rendering factual findings

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Writing a report

Conducting an investigation is a major responsibility. In discipline cases, employees may challenge the fairness or accuracy of the investigation, making the investigation itself subject to scrutiny in a hearing or judicial proceeding. If litigation ensues as a result of alleged discrimination or harassment, the plaintiff may be able to gain access to the investigation: the written report and the investigator’s binder, including the investigator’s notes, may be discoverable. It is therefore crucial that the district choose an appropriate individual who is capable of conducting a PROMPT, FAIR and THOROUGH investigation. Sample written reports can be found in the appendices at the end of this workbook.

Case Study

Jameson v. Pacific Gas and Electric Company 62 Pacific Gas and Electric Company terminated Steve Jameson after an investigation by the company concluded that Jameson had retaliated against another employee for raising a safety issue about Jameson. Jameson argued his termination was improper because the investigation was procedurally flawed and the investigator reached incorrect conclusions. The California Court of Appeal held that the standard of review is not whether the investigation could have been done differently, more comprehensive, or whether the investigator’s conclusions were correct. The courts will not compel employers to undertake a precise type of investigation; instead the investigation must be “inherently fair.”

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 20