INVESTIGATIONS NOT APPROPRIATELY PERFORMED CAN BE DISCRIMINATORY!

The Law Office of Allan Villanueva representing two plaintiffs in an age discrimination case prevailed on October 9, 2013, in a Motion for Summary Judgment brought by one of the largest retailers in the US.

Plaintiffs who were cashiers at defendant were terminated for what defendant believed was a misuse of promotional coupons for plaintiffs’ own benefit.  When plaintiffs were interviewed, they purportedly admitted to violating defendant’s integrity policy, which was akin to theft.

Plaintiffs countered that the investigation leading to termination, and not only the termination, was discriminatory.  Plaintiffs argued that defendant did not even interview employees who handled the coupons, who were involved in the transactions the plaintiffs were involved in, and who may also have violated company policy.

The Court agreed, citing Nazir v. United Airlines (2009) 178 Cal. App.4th 243, 280, “the purported unlawful differential treatment here lies in both the investigation and discharge decisions made, not just in the discharge itself.”

Lessons to be learned from Nazir v. United Airlines, and Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, which was cited by Nazir, are:

1.         Interview ALL potential witnesses, including those that may exculpate employee;

2.         Do not conduct the investigation so it is predisposed to a finding of culpability;

3.         Follow the employer’s policy regarding investigations.  For example, the policy might state as to who is to conduct the investigation, interviews, etc., and it might state that before obtaining a statement from the accused, provide the accused with the accusation.

In the next blog, I will include other tips as to how to conduct a proper investigation.