‘This is why you were fired’

published in Oklahoma Employment Law Letter | October 1, 2011

By Charlie Plumb

Employers that are later sued for their discipline and discharge decisions often find themselves defending the way they reached those decisions. That means showing you had a good reason to look into a particular problem and demonstrating you were thorough and fair in your inquiry. As one county sheriff recently learned, the ability to explain and defend your investigation can help you avoid liability when one of your employment decisions is later challenged by an angry ex-employee.

Accusations spark investigation

Neil Locke became a deputy sheriff for Grady County in July 2003. In November 2008, Art Kell was elected sheriff. One month after his election, he promoted Locke to night-shift supervisor. Soon after, Kell heard from another worker that Locke was sexually harassing female officers, so he began an investigation. He and a lieutenant interviewed a number of female employees. They asked general questions about sexual harassment; Kell didn’t suggest or name Locke specifically.

The female officers reported to Kell and the lieutenant that Locke had made sexually charged remarks, appeared at some of their homes, and offered to assist with a training program in exchange for “favors.” According to some of the women, Locke had also suggested he wouldn’t provide backup to a female officer unless the provided sexual favors.

Kell gave Locke a written statement detailing the complaints that were reported. The statement didn’t identify the women who had reported his harassing behavior. he then demoted Locke and placed him on probation for one year. According to Kell, he ordered Locke not to talk to any of the women. Nevertheless, Locke immediately went to the jail and confronted one of the female employees whom Kell had interviewed. When Kell learned about the confrontation with the female officer at the jail, he fired Locke.

Locke claims age bias

Locke sued the county, claiming he was demoted and later discharged, not because of his conduct toward female officers, but because of his age. He accused Kell of stating that “he did not want any old man working in the Sheriff’s Department.” However, Kell was able to provide legitimate nondiscriminatory reasons for adverse employment actions. That meant the former deputy was required to show that the sheriff’s stated reasons — sexual harassment and the confrontation with one of the complaining female officers — weren’t the real reasons and that he was fired because of his age. To do that, he attacked the investigation.

First, Locke accused Kell of drumming up the harassment complaints against him. The first complaint was communicated to the sheriff by an intermediary and was unsolicited. After receiving the initial complaint, Kell and the lieutenant interviewed several female officers. During the interviews, female officers were asked general questions about harassment. Locke wasn’t singled out as a potential harasser. Rather, it was the female officers who independently identified him as the person responsible.

Next, Locke complained that under the county’s procedures, the investigation should have been conducted by the undersheriff instead of the sheriff. However, in this case, the undersheriff was a close personal friend of Locke. Obviously, any investigation by Locke’s buddy would have been subject to criticism. Further, Kell didn’t conduct the investigation alone; he was assisted by a lieutenant.

Finally, Kell testified that he issued a direct order to Locke forbidding him from talking to the complaining female employees. Locke denied receiving the order. He also claimed he simply went to a female employee to apologize and denied acting intimidating during the meeting.

The court rejected both arguments. Even though it was disputed whether Locke was ordered not to contact the women, it was clear that he should have known to stay away from the female officer he approached. A female witness testified that when he came to speak to her at the jail, he stood over her, was angry, and used a threatening tone of voice. As a result, the federal court in Oklahoma City threw out his claim of age discrimination. Locke v. Grady County, Case No. 10-6278 (10th Cir., 8/19/11).

Keep track of your decisions

When making disciplinary and termination decisions, remember that you may be required to explain the circumstances and bases of those decisions later. Keeping track of how employee issues or complaints were first brought to your attention and how you went about investigating them will go a long way toward successfully defending your actions if you’re later challenged with an employment claim or lawsuit.