238k Reasons Why Interviewing the Complainant and Alleged Wrongdoer Simultaneously Is a Bad Idea

I swear it’s true. Mendoza v. Western Medical Center Santa Ana.  (CA Ct of Appeal, filed 1/14/14) Mendoza received a nice jury award of $238k.  This is another case about the importance of conducting a good faith investigation.

Facts: Mendoza was employed as a nurse for over 20+ years. By everyone’s account he was an excellent employee.  Even the defense counsel conceded this point.  In 2010, Del Erdmann was  Mendoza’s supervisor.  Both men are gay.  Mendoza filed a complaint alleging that  Erdmann sexually harassed him on multiple occasions. The allegations included inappropriate, sexually lewd, crude comments, physical contact (blowing in his ear) and that Erdmann had exposed himself.  Erdmann contended that Mendoza was flirtatious and consented to the conduct.  At the end of a crappy investigation (see below), both men were fired.  Mendoza later sued for retaliation.

Employer Mistake #1:  Wrong investigator. Who did the investigation? Mendoza and Erdmann’s supervisor.  Not HR. Not an experienced employee relations professional or an outside investigator.  A regular supervisor with zero investigation training or skills.

Employer Mistake #2: Never interview the complainant and alleged wrongdoer (or anyone else) at the same time.  Given the serious allegations, it is unfathomable that anyone, even an inexperienced investigator would interview the two together.  Erdmann was Mendoza’s supervisor.  The goal of an investigation is to figure out what happened, not to shame, embarrass and intimidate the complainant.  Also, Erdmann was entitled to answer questions and give his version of the facts without anyone present.

Employer Mistake #3:  Only interviewing the complainant and alleged wrongdoer and no other witnesses.  Are there times when the only witnesses are the complainant and alleged wrongdoer?  Absolutely.  However, even in a classic case like this one of “he said, he said” there are other witnesses to interview.  Many times these cases come down to the credibility of each person.  In these cases, as the court highlighted, interview witnesses who can attest to the credibility, or lack thereof, of the complainant and alleged wrongdoer. These are not easy cases. But, as investigators we are charged with reaching a conclusion, so we need to be thorough and must make credibility determinations.

Employer Mistake #4:  Doing an investigation just to say you did, as opposed to trying to figure out what happened.    The court stated, “The lack of a rigorous investigation by defendants is evidence suggesting that defendants did not value the discovery of the truth so much as a way to clean up the mess that was uncovered when Mendoza made his complaint.”  I guess that about sums it up.

But wait, there’s more.  Here is the final footnote of the case:

“At oral argument, defense counsel asked (perhaps rhetorically) just what employers
were expected to do when faced with a scenario in which two employees provide conflicting accounts of inappropriate conduct. Our answer is simple: employers should conduct a thorough investigation and make a good faith decision based on the results of the investigation. Here, the jury found this did not occur. Hopefully, this opinion will disabuse employers of the notion that liability (or a jury trial) can be avoided by simply firing every employee involved in the dispute.”

At the end of the day, a good faith investigation means an employer must show it honestly believed that the employee engaged in misconduct based upon substantial evidence obtained through an adequate investigation.  Western Medical Center has 238K reasons to learn what that really means.




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One Response to 238k Reasons Why Interviewing the Complainant and Alleged Wrongdoer Simultaneously Is a Bad Idea

  1. David O'Riordan says:

    As a matter of interest , what was the breakdown of the award?
    By the way we dont have jury hearings in employment cases in Ireland

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