Everett Young, an
African American, worked as an investigator at Dillon
Companies' King Soopers grocery stores in Colorado.
According to his employer's timekeeping procedures, he
was supposed to complete all time records in a manner
that reflected the true hours he worked. His shift was
scheduled to run from 2:00 p.m. until 10:30 p.m.
Dillon began
investigating Young because of allegations that he was
abusing telephone privileges during work hours. Its
investigation included reviewing store security videos.
As part of that review, his supervisor, Jon Lesley, saw
images on the videos indicating that he left the store
two hours before the end of his shift on January 11.
Lesley investigated
Young's timekeeping records. He was required to "punch
out" at the end of every shift through an electronic
timecard system and record his hours in a transfer log
on the last day of each workweek.
A review of the time
records showed that Young didn't fill out his transfer
log until the day after his last day of the workweek,
when he recorded a full shift for January 11.
Lesley interviewed an
administrative assistant at Young's home store who said
the timecard system didn't show a departure time for
10:30 p.m. on January 11. That indicated to Lesley that
Young didn't punch out that day. Instead, he
misrepresented the time he had worked on his weekly
transfer log.
Lesley interviewed Young
to get his version of events. Young denied leaving
early and claimed he punched out at 10:30 p.m. At the
time, he didn't produce any other evidence to explain
the video showing him leaving early or refute his
supervisor's evidence that he hadn't punched out at the
end of his shift.
Lesley reported his
findings, including Young's version of events, to his
supervisor, the director of security, who then discussed
the situation with the manager of labor and employee
relations.
Based on the
investigation, they determined that Dillon should fire
Young for "theft of time," or seeking pay for time he
didn't actually work.
Young sued Dillon,
claiming he was fired because of his race in violation
of
Title VII of the Civil Rights Act of 1964. Dillon
replied that race had no part in its decision, pointing
to the investigation and the evidence it produced.
To avoid dismissal of
his Title VII claim at that point, Young had to produce
evidence showing that the reasons his former employer
gave for firing him lacked credibility or were unworthy
of belief.
During the discovery
phase of the litigation, Young produced evidence that
although he hadn't punched out at 10:30 p.m., he had
punched out later at 11:58 p.m. He claimed that he
realized he forgot to punch out after he arrived home
and returned to the store to do so.
As for the video showing
him leaving two hours before the end of his shift, Young
stated that he had walked outside to check on the
security of gas tanks stored behind the building. Young
admitted, though, that he had never shared any of that
information with his employer before his termination.
The Court ruled that
Young failed to show any discrimination by his former
employer. The court acknowledged that the evidence he
produced during the litigation might very well cast
doubt on Dillon's conclusion that he left his shift
early.
However, the court said,
there was no evidence that the company knew at the time
it fired him that he had come back to punch out. Dillon
had a nondiscriminatory reason for terminating him --
seeking payment for time he hadn't worked -- and he
didn't produce any evidence that it had manufactured
that evidence to cover up discrimination.
According to the court,
the question isn't whether the employer was correct in
determining that the employee misbehaved; the question
is whether it made a good-faith effort in its
investigation.
The court has to look at
the facts at the time and under the circumstances of the
termination to see if there's a good-faith basis for the
decision, not the facts in hindsight as they're
unearthed during litigation. So an employer can reach
the wrong conclusion in an investigation into whether
there was misconduct and not be liable for
discrimination so long as it performed its investigation
in good faith.
Tips for performing
workplace investigations
Here are some things to
keep in mind when you investigate allegations of
employee misconduct:
-
Have a neutral
person perform the investigation. If an employee
has made accusations of bias or discrimination
against a supervisor, that supervisor shouldn't be
the person heading up the investigation.
-
Check all sides of
the story. Get the accused's side as well as t any
witness' versions of the events.
-
Check any documents
that might back up or refute the witness'
statements.
-
Take notes -- and
keep them.
-
Present the
investigation results to someone higher up -- like a
manager who will make the final decision. One of
the factors in the employer's favor in this case was
that the investigator showed all the facts -- both
the evidence of misconduct and Young's version of
events -- to his supervisors. Those supervisors
made the ultimate decision, and there was no
allegation that they had any discriminatory motives
against Young.
-
Preserve any
evidence you find at least until the statute of
limitations has run on claims of discrimination,
public-policy violations, or statutory claims.
