Misconduct Investigations: When Punting Can Save the Game
Misconduct Investigations: When Punting Can Save the Game 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)