Wednesday, 04 September 2013 08:02
By Lee Williams
The investigation in question
In this case, an employee filed suit against his employer claiming he was terminated from employment for aiding a co-worker in a separate lawsuit filed against the employer for unlawful hiring practices. The employee aided his co-worker by providing a memorandum of a conversation the employee had with a supervisor and unknowingly delivering a second document to his co-worker which was given to the employee in a sealed envelope. Both of these documents tended to support the co-worker’s claims of unlawful hiring practices. In addition, the employee reviewed several of the pleadings the co-worker filed with the trial court.
As the co-worker’s lawsuit progressed, the employer’s top executives became aware of the employee’s aid to his co-worker and conducted an internal investigation into the employee’s activities. As a result of the investigation and subsequent administrative findings, the employee was eventually terminated from his position. At the trial level, the lower court ruled the employee was fired not because of the aid he provided his co-worker, but rather due to the dissemination of confidential information in the documentation he provided his co-worker. The employee appealed this decision to the Seventh Circuit.
A “convincing mosaic”
The Seventh Circuit analyzed the employee’s evidence under its “convincing mosaic standard.” Essentially, this method of proof allows a plaintiff to present an assortment of “bits and pieces” of evidence which, when considered as a whole, could lead a judge or jury to decide the case in their favor. The Seventh Circuit found ample evidence supporting the plaintiff’s “convincing mosaic,” including: the employer telling the investigator to consider termination as the preferred option, the commencement of the investigation despite the state police and state attorney’s office clearing the employee of any wrongdoing, and the over-breadth of the investigation which involved searching the employee’s office for documents unrelated to the suit and studying the employee’s phone records. This evidence, combined with the fact the employer failed to limit its investigation through the completion of proper forms and a seeming guilty until proven innocent mentality, allowed the Seventh Circuit to easily overturn the trial court’s ruling.
Take care in investigating
Employers should have a written policy or established practice for handling all investigations of employee misconduct. It is imperative that those conducting investigations on behalf of the company know these policies or methods and adhere to them rigorously. An important note from the present case is to establish, before the investigation begins, the specific alleged acts for which the employee is being investigated. Once those boundaries have been established, the investigation should not exceed those limitations in most circumstances.