Employee investigation tips

By Phillip R. Bruce

Employers investigate all sorts of odd or disturbing claims. Knowing how to properly investigate these claims is critical. A recent case from the Tenth Circuit Court of Appeals put this on full display.

Student teacher fired

Carlos Bassatt was a student teacher at West High School in Denver, Colorado. One day a co-worker, Maria Iams, was getting out of her car in the school parking lot when she noticed a man – who was later positively identified as Bassatt – masturbating in the car next to hers. Iams, who had never seen Bassatt before, immediately reported this to the school’s safety resource officer, Vincente Damian, who was also a Denver police officer.

The school investigated Iams’s report, believed her side of the story, and ultimately discharged Bassatt from his student teaching position. Bassatt subsequently sued the school district, claiming that he was discriminated and retaliated against based on his Puerto Rican heritage. He argued that his proof of discrimination and retaliation was, among other things, that the school inadequately investigated Iams’s claims and, therefore, didn’t have enough information to believe Iams instead of him. The Tenth Circuit looked at what the school did right – and wrong – with the investigation. In the end, the court concluded that the investigation was sufficient and dismissed Bassatt’s case. Looking at what the school did in the investigation is a helpful case study for employers.

What went right with the investigation

After Iams reported what she saw to Damian, the officer had her prepare a written statement.  Next, Damian reviewed security footage. He then wrote a report and informed the school’s dean of students, Dan Trujillo, and principal, Patrick Sanchez, of the incident.  After reviewing the security video, Dean Trujillo was able to identify Bassatt as the individual whom Iams had described.  Principal Sanchez personally investigated Iams’ allegations, interviewing Iams and Bassatt, as well as key witnesses.

The Tenth Circuit found that the investigation was sufficient based on two main factors including: (1) Sanchez interviewed both Iams and Bassatt. Previous cases have held that if an employer does not interview the alleged wrongdoer, it may be an insufficient investigation. Sanchez avoided this criticism by listening to both sides of the story; and (2) the employer had corroborating evidence in the form of the security video and took the time to review it. This turned out to be key, because Iams couldn’t identify Bassatt, since she had never seen him before.

What went wrong with the investigation

The school’s investigation was not without its problems. The most glaring issue was  Sanchez’s mistaken assumption that he could not fire Bassatt if the police decided not to press charges. Sanchez erroneously emailed Bassatt saying that “We have the all clear for you to return to West in good standing[;] the investigation did not determine that the allegations were founded.” Simply put, Sanchez acted too quickly before determining all of his legal options. The court also took issue with Iams’s inconsistencies, particularly with her description of what Sanchez was wearing. Finally, the court noted that the investigation could have been more thorough.

Fortunately for the school, these shortcomings were not fatal. Once Sanchez learned that he could still terminate Bassatt, he called him back for another interview. Iams’s inconsistencies in her description also proved irrelevant, since Bassatt admitted he was the person on the security tape. And, despite Sanchez’s investigation not being completely thorough, it was enough that Sanchez interviewed the key witnesses – Damian, Iams, and Bassatt himself. The court accepted the school’s reason for termination and decided Bassatt had insufficient evidence of discrimination and retaliation.

The takeaway

Employers can learn several lessons from this case, including:

  1. Interview all key witnesses, specifically including the person making the allegation and the person the allegation is about;
  2. Be thorough and don’t rush the investigation. This means taking sufficient time to review all evidence, such as videos, and asking all necessary questions;
  3. Don’t make assumptions or rule out all resolutions prematurely. Sanchez’s email could have caused major problems for the school if he hadn’t corrected his mistake.   Don’t find yourself in the same position;
  4. Pin down discrepancies. If a witnesses’ story doesn’t make sense, ask about the shortcomings. Or, if a witness seems uncertain about something, don’t treat it as a fact unless you can corroborate it; and
  5. If you make a credibility determination as to who is telling the truth, make sure you can back it up with a good-faith reason. Often, employers will have he-said-she-said scenarios. The best way to show that the ultimate determination in that situation is not discriminatory is to have gone through an appropriate investigation.

Estate of Carlos Bassatt v. School Dist. No. 1 in the City and County of Denver
, No. 13-1244 (10th Cir. Dec. 31, 2014)