The Danger of a Bad Investigation

By Deborah Hopkins, October 19, 2018

Have you ever conducted an administrative investigation? Depending on the allegations at issue, even if you haven’t yet, you might one day find yourself in a Sherlock Holmes hat and cape, tasked with discovering the truth.

You have the best chance of doing so if your job title is any of the following:

• HR specialist
• Law enforcement officer
• Attorneys
• Contract investigator
• EEO specialist
• IG or professional responsibility staff
• Line manager

The characteristics of a legally sufficient investigation are that the investigation be prompt and objective; that all relevant witnesses be interviewed, particularly when credibility is at issue; that all relevant documents are reviewed; that the investigator follows up as information is collected; and that a fair analysis of the facts is given. California Labor & Employment Law Review, Vol. 28, No. 6, pp. 1-7.

Objectivity is really key here; if the investigator shows any bias, it undermines the entire investigation. One of the worst things that can happen to both an agency and an employee, is for an investigator to conduct a bad investigation. Whether it’s a misconduct investigation, an EEO investigation, a reprisal investigation, or another type, the results can cost the agency anything from a minor sanction to a sizeable settlement to default judgment – and it can cost the employee years of waiting for a final answer.

One of the lead cases we discuss in our Workplace Investigations Week training (next held in Washington, DC, November 5-9) is Whitmore v. Labor, 680 F.3d 1353 (Fed. Cir. 2012). In this case, the employee was fired. The agency said it was for misconduct. Mr. Whitmore alleged it was in reprisal for his protected whistleblowing.  The Department of Labor brought in an investigator who from the start showed extreme bias against the appellant. You should read the case for yourself (or come to our class) if you want the details, but among the highlights – er, lowlights – the investigator refused to interview any of the appellant’s witnesses, and also sent an email to a DOL official saying he would help the agency “kick [the whistleblower’s] ass this time.” It was such a bad investigation the agency ended up settling the case for $820,000 rather than go to a rehearing. Ouch.

In the discrimination world, EEOC has seen a number of bad investigations. Recently, in a complaint of disability and reprisal discrimination, the EEO investigator doing the investigation did not interview any of the witnesses identified by the complainant, which the Commission noted unfairly restricted the complainant’s ability to prove discrimination (ya think?). The Commission also said it would not have been unduly burdensome for the investigator to talk to those six witnesses (again, ya think?). There was no investigation into the complainant’s statement that he was not allowed to take annual leave in lieu of sick leave for his disability-related issues. This, said the Commission, was articulation of a denial of a reasonable accommodation that the investigator should have addressed, but did not. This case got remanded to the agency for a supplemental investigation.  Julius P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120162827 (Mar. 6, 2018).

The complainant’s first contact with an EEO counselor was on March 2, 2015, and the new investigator is presumably only talking to his witnesses and investigating the denial of reasonable accommodation allegations now, coming up on four years after the fact. It’s unfortunate to all parties involved that years later, this matter in Julius P. is still not resolved, and all because of a bad investigation. Need more? Come to the classes. We’re here to help. Hopkins@FELTG.com