Misconduct Investigations: When Punting Can Save the Game

Copyright 2006 Joni Johnston A bungled investigation can quickly turn a reasonable, still employed complainant into a hurt, damaged and angry former-employee-plaintiff. --Anonymous For Tammie C. Allen, former admin assistant to MTSU President Sidney McPhee, the unsolicited advances, kisses, groping and requests for sexual activities from her boss were less injurious than the humiliating and biased sexual harassment investigation that followed her complaint. She expressed this outrage in a civil complaint, seeking monetary redress for incurred medical expenses and "severe emotional distress, mental anguish, indignation, wounded pride, shame and despair." Among the allegations: the investigators were under the direct supervision of the alleged offender; Ms. Allen's attempts to provide the investigators with more witnesses to the alleged sexual harassment were ignored; Allen took a polygraph test in November to prove her case, but the TBR refused to consider that as a piece of evidence; her request for a meeting to discuss the findings of the investigation was denied; she received an involuntary transfer following the investigation that resulted in less responsibility, prestige and promotional opportunities. Just the FACTS The integrity of the investigatory process will be jeopardized if the investigator is perceived (rightly or wrongly) as partial or sympathetic to one view or another. In some situations, the conclusion of an internal investigation and the action it took based on the investigation will be questioned either as a whitewash or as a pretext for firing the individual without breaching his contract. This is just one of the circumstances where it pays to bring in an outsider. However, until March of this year, third-party investigations of employee misconduct were subject to the notice and consent requirements of the Fair Credit Reporting Act of 1970. At the same time, Supreme Court decisions in Ellerth and Faragher [Burlington Industries, Inc. v. Ellerth, 73 Emp. Prac. Dec. (CCH)