As you are all aware by now, as well as being labor and employment counsel, the attorneys at Wiley Reber Law are both experienced investigators for both public and private employers across the states of Minnesota and Wisconsin.  But it isn’t very often we’re able to share a legal decision that demonstrates the value of an investigation when employers are facing discrimination claims by current or former employees.

In the case of Nelson v. Lake Elmo Bank, the plaintiff was terminated from her employment after her subordinate complained of her conduct at an off-site social gathering, where she alleged the plaintiff fondled the subordinate, attempted to kiss the her, and made lewd statements toward her.  The subordinate brought the complaint to the plaintiff’s supervisor, and the complaint was immediately investigated by human resources.  During the investigation, the plaintiff admitted that “her behavior at the bar was just ‘friendly banter’ and ‘there was a history of things like this between her and’” the complainant.

Based on the investigation, the employer concluded that the plaintiff’s conduct violated its harassment policy, and terminated her.  She responded to that action by filing a discrimination complaint against the bank.  The district court dismissed both complaints on summary judgment.

On appeal, the Eighth Circuit applied the standard McDonnell Douglas framework to the case, where the plaintiff must first make a prima facie case of discrimination.  Nelson alleged that the circumstances giving rise to her termination were the Bank’s pretextual reasons for terminating her, i.e., the findings of its investigation.

While there were several other issues raised by the plaintiff in this case, it did not change the Court’s determination that the reason for her termination was related to the finding of her policy violation that were established by the investigation.  Therefore, it was not possible for the plaintiff to claim pretext in the Employer’s reasons for her termination.

Nelson alleged that the investigation was incomplete, in that neither Nelson’s boyfriend, nor the subordinate’s boyfriend, who were both present that evening, were questioned about the incident.  The Court responded by stating, “the proper inquiry is not whether the employer was factually correct in determining that the employee” committed the conduct for which they were accused, but whether the employer honestly believed that the employee did the acts.

The Court found that during the investigation, Nelson admitted to performing the acts of which she was accused, and that the Bank “had sufficient information to reasonably believe Nelson violated the company’s harassment policy.”  Even if the Bank’s belief about Nelson’s conduct was mistaken, “this does not automatically show Nelson’s termination was motivated by sex discrimination,” said the Court.

As you can see, even an incomplete investigation can insulate an employer from certain claims.  If you, or your organization, need assistance in investigating complaints by employees, or to provide evidence when making decisions about employee misconduct, contact Wiley Reber Law, for investigation services that work.