Investigation Requirements for #MeToo Complaints

By: Genevieve Ng

A few hundred people demonstrated at Michigan State University (MSU) on April 20, 2018, calling on the Michigan State University Board of Trustees to resign. They were joined in the call by the editorial board of the Michigan State University newspaper, The State News , and the MSU Faculty Senate. This demand stemmed from MSU’s handling of the Larry Nassar sexual abuse scandal. ¹

MUCH HAS BEEN WRITTEN RECENTLY ABOUT HOW MSU mishandled numerous complaints of abuse made by athletes over the course of years going as far back as 1997. ² One such article recounts how MSU’s Title IX ³ office handled Amanda Thomashow’s complaint that Nassar massaged her breasts and her vaginal area during an examination. ⁴ Kristine Moore, MSU’s Title IX coordinator, investigated Thomashow’s complaint, interviewed at least three medical specialists and an athletic trainer, and found that Nassar’s actions were “medically appropriate.” The four individuals interviewed had personal ties to Nassar. ⁵ In fact, Nassar himself specifically recommended that Moore use an expert witness ⁶ who had previously supported Nassar in another sexual assault claim. William Strampel, dean of the MSU College of Osteopathic Medicine, where Nassar worked, regularly checked on the status of the investigation, voiced support for Nassar, and told Nassar that he could return to work before the investigation concluded. ⁷ In 2016 and 2017, after some of the Nassar allegations were made public, MSU finally hired an outside law firm to conduct an investigation into allegations of sexual assault leveled at MSU football players. While the enormity and tragic significance of the Nassar situation is, hopefully, not one that any of us will be faced with, how the Nassar allegations were mishandled provides several important lessons for employers who receive complaints of sexual harassment, discrimination, and bullying. ⁸

When an employer receives a complaint of sexual harassment, discrimination, or bullying, the employer’s legal obligation is to take reasonable steps to prevent and correct any unlawful behavior. ⁹ Reasonable steps include maintaining a written policy on sexual harassment, discrimination, and bullying that is stripped of legalese, frequently disseminated, and easily accessible to employees. Aside from describing what kinds of conduct may constitute harassment, discrimination, and bullying, the policy must contain a complaint procedure, which provides the lead-up to the employer’s investigation process.

The focus of this article is not on effectively drafted harassment, discrimination, and bullying policies, or the complaint process generally. Nor is it about conducting effective investigations, as that would be enough for a book. This article focuses instead on the investigation requirement contained in an employer’s complaint procedure and provides some best practices for avoiding perceptions of bias in the investigative process. Even if there is no violation of law, an employer is generally obligated by its own policies, good business practices, and fear of litigation to take “appropriate remedial steps” when there is an allegation of misconduct. ¹⁰ Because the employer’s remedial action relies significantly on investigative findings, it is vital to know what makes an investigation effective. At its heart, an effective investigation is about fairness to all involved. It should allow the complainant to be heard, address the complainant’s concerns, and allow the subject to tell their side of the story.

When Is an Investigation Needed?

When faced with a complaint of harassment, discrimination, or bullying, the first question is whether an investigation is needed. A formal investigation is not always necessary, but there must be some attempt to ascertain the facts. If the allegation does not involve serious misconduct or the facts are not largely in dispute, an employer may be able to make informal inquires, reach a reasoned conclusion on what took place, and document the results.

If the subject of the complaint admits to the conduct, an investigation is not necessary. Documentation of the complaint, the subject’s admission, and the result of the inquiry is highly recommended. In these instances, the focus of the informal inquiry is whether the undisputed facts show that misconduct occurred.

Documentation may be as informal as a memorandum to file, or as formal as a report setting out the facts, any documentary evidence, findings, and a determination as to whether the conduct violates the employer’s policies.

The Hallmarks of an Effective Investigator and Investigation

If a formal investigation is necessary, what does that entail? It is generally accepted that a formal investigation includes:

• Interviews with witnesses who have been provided written notice of their interviews and may include representation by employee representatives where required or appropriate
• Review of evidence including, but not limited to, communications between the complainant and the subject, such as emails, text messages, screenshots of other messaging applications, and social media posts and videos
• Credibility determinations of the complainant, subject, and witnesses
• Analysis of witness statements, evidence, applicable policies, and other relevant information
• Findings

A formal investigation does not need to be conducted by an individual outside of the organization to be effective. After an employer determines that a formal investigation is needed, the next question is who should investigate. An internal investigator may be as appropriate as an external investigator. The hallmarks for a qualified investigator include neutrality, experience conducting investigations, professional demeanor, availability, and what is referred to as testifiablity.

The Investigator ¹¹

Neutrality is the key inquiry when determining whether an in-house or outside investigator should be used. A trained manager, human resources staff, or in-house attorney may fit the bill, especially where the in-house person does not have ties to any of the parties involved. Using an in-house investigator may make sense in a large organization where the likelihood of the investigator knowing all or some of the players is low. In mid-size to smaller organizations, it may still be possible to use an in-house investigator if the investigator does not have close ties to either of the main parties or to the witnesses and has been isolated from the workplace rumor mill so the investigator has not heard about the complainant, the subject, or the event.

Neutrality is also a frame of mind. Going into any situation without prejudgment or preconceived notions of behavior is the greatest asset to any investigator. Additionally, it isn’t always about the subject or the complainant’s behavior either. A witness may be less than forthcoming, fail to make eye contact, or appear fidgety. These may be body language indicators of having something to hide, or they could be cultural behaviors that are different than ours. A neutral investigator is aware of his or her implicit biases and actively combats those biases.

The availability of potential investigators may also influence an employer’s choice. If external candidates are not available for weeks, it might impact the effectiveness of the investigation. Some employers may have timelines built into their complaint procedure and must act within specified timeframes. Other key hallmarks of the right investigator are experience and expertise. The severity, pervasiveness, or complexity of the allegations, the profile level of the complainant or subject, and the potential for litigation are all factors that will require the investigator to have significant experience and expertise in the field. Charges of bias and incompetence will undoubtedly come into play from either side, and an employer must be able to defend its decisions on who it hired to conduct the investigation and how the investigation was conducted. The testifiability of the investigator—his credibility, how he holds up to an attorney’s cross-examination, how skillfully he answers questions about his investigative methodology and his findings— is also critical in defending an employer’s action in any ensuing legal proceeding.

The Investigation

An effective investigation is timely done, documents conduct, and makes findings but not legal conclusions. An investigation that starts close in time to when a complaint is made and moves swiftly but thoroughly through the investigative steps—interviews, evidence evaluation, report writing—sends a strong signal that the employer takes complaints seriously. While an investigation should never be rushed, it should also not take so long as to allow for memories to fade or evidence to become stale. It is a good practice for the employer to meet with the complainant, gather sufficient, relevant information to understand the scope of the complaint, and communicate to the complainant that the matter will be taken seriously.

An employer should explain to the complainant the employer's policy on harassment, discrimination, or bullying; describe the components of the investigative process; give a rough estimate of timing (or at least a time frame for when the employer will check in with the complainant); and provide assurance on the employer's policy to prevent retaliation against participants in an investigation. While the employer cannot promise confidentiality, the employer should request that the complainant be discreet with respect to the investigation while it is ongoing. Lastly, the employer should solicit from the complainant what the complainant wants from the process.

Documentation of the investigative process includes spelling out the steps of the investigation, including the list of evidence and witnesses. In creating the list of evidence and witnesses, it is important to gather all relevant information and speak to all relevant witnesses. Relevant witnesses are percipient witnesses—individuals who observed the conduct, heard about the event directly from either the complainant or subject, or may have insight into the event or the individuals involved. This is not to say that everyone and their mother should be interviewed, but an investigator should keep an open mind and interview more than the complainant and subject even in he-said/she-said situations. ¹² Documentation also includes recording witness interviews either electronically, which is easiest and creates the most accurate record of what was said, or by hand with written or typed notes. It is recommended that the investigator be consistent in recording interviews or explain in the final report why there is a change in recording method.

The investigative report should document the process and include an analysis section and findings of facts. The report should provide a step-by-step breakdown of how the investigator arrived at the conclusions of fact by a preponderance of the evidence. The analysis should incorporate witness statements, credibility determinations (where necessary and appropriate), and evidence. The investigator may make determinations as to whether the employer’s policies were violated. The investigator should not make legal conclusions. It is also not recommended that the investigator make recommendations on levels of discipline in an investigative report.

Avoiding Perceptions of Bias

Regardless of whether an employer uses an in-house or external investigator, the aggrieved party will often claim that the investigation is biased and not objective. Because the investigation is initiated and paid for by the employer (either because the employer has hired an outside investigator or because they employ the in-house investigator) aggrieved parties often point to the money to say that the investigator’s findings are predetermined. There are multiple ways for an employer to combat these allegations.

The MSU investigation in the Larry Nassar sexual abuse scandal by Kristine Moore is instructive. There is nothing inherently wrong in selecting Moore, an individual employed by MSU as its Title IX coordinator, to conduct the Title IX inquiry into Thomashow’s abuse allegations. Generally, Title IX coordinators are trained to conduct such investigations. Often, these investigators are attorneys who are experienced in conducting investigations. In this instance, however, in each article reviewed by the author, it is noted that Moore is now assistant general counsel at MSU, a promotion from her initial role as Title IX coordinator at MSU. While there has been no allegation of impropriety on Moore’s part, the perception that Moore’s report found no wrongdoing on the part of Nassar can play into a narrative that her exoneration of MSU helped her get ahead in her personal career. An employer may wish to consider those optics when it determines whether an investigation should be handled internally (and who should handle it internally) or externally. Anticipating the criticism and claims of bias may help in determining who should investigate.

Another troubling revelation in this matter is the involvement of Dean Strampel in the investigative process. ¹³ It was reported that he regularly checked on the status of the investigation and voiced support for Nassar.¹⁴ Interference from the employer, especially by employees who have strong ties to the complainant, subject, or other witnesses, is problematic because it creates the perception that the investigation is not an objective and independent inquiry.

While Dean Strampel’s conduct may not have had any actual impact on Moore’s investigation, this cannot be proven or disproven, and creates the perception that Moore’s investigation was not objective due to Dean Strampel’s interference. An investigator should be allowed to investigate free from any interference by the employer. An investigator should periodically check in with a key contact person, most likely the party who retained the investigator—human resources, in-house counsel, or a high-level department head—to provide updates on the progress of the investigation. But at no time should an investigator allow someone other than the designated contact person to receive updates or otherwise interject themselves into the investigative process.

It appears from the reports that Moore’s investigation and her investigative methodology lacked neutrality.¹⁵ Nassar did not dispute the conduct but asserted that his actions were in line with medical evaluations, a topic on which he had presented nationally and internationally. Moore interviewed three doctors and an athletic trainer as expert witnesses who were suggested to her by Nassar. All four experts knew Nassar and two of them had previously worked for him. These four experts were the only ones interviewed by Moore. She concluded that Nassar’s conduct was “medically appropriate.”

The selection of Moore’s expert witnesses creates a perception of bias because she chose to interview only the individuals with ties to Nassar and did not consult any independent experts. Interviewing medical professionals outside of MSU, USA Gymnastics, and those selectively chosen by Nassar to obtain expert opinions untainted by any perception of bias would have gone a considerable way in making the investigation more objective.

Lastly, Moore’s final investigative report to MSU is troubling for a variety of reasons. First, Moore’s report included a finding that Nassar’s conduct opened MSU up to potential liability because his practices “expos[ed] patients to unnecessary trauma based on the possibility of perceived inappropriate sexual misconduct.”¹⁶ Moore also stated that MSU’s failure to obtain consent from patients prior to the procedure could also prove problematic. “If procedures can be performed skin-on-skin or over clothes in the breast or pelvic floor area, it would seem patients should have the choice between the two.”¹⁷

This assessment of liability is problematic because the investigative report should include only findings of facts, and any recommendations on best practices should be contained in a separate document. This is because investigative reports are generally not confidential documents. Even when the investigation is performed by an attorney, they are often not privileged documents either. Including information on MSU’s areas of liability in a report that gets disseminated to many parties undermines Moore’s ultimate conclusion that no misconduct occurred. Moore should have conveyed her thoughts on MSU’s areas of potential liability in a separate memorandum with the consultation of campus counsel.

Additionally, if the “procedure” had the potential of causing trauma based on the “perception” of sexual misconduct, that information should have been included in her analysis of whether the conduct was “medically appropriate.” It raises many questions related to whether other medical professionals would agree with Nassar’s methods and, as discussed above, that is an area that should have been explored through interviews with independent medical professionals.

Second, the version of the investigative report provided to Thomashow pursuant to Title IX requirements did not include Moore’s findings as they related to potential liability associated with Nassar’s practice. By providing a different report to the complainant, there is a perception that the report deliberately concealed relevant information.

Third, in both versions of the report, Moore excluded details from Thomashow’s statement that Nassar had an erection during the examination and that Thomashow asked Nassar to stop and he did not, details that are particularly significant in a sexual harassment investigation. The lack of thoroughness in Moore’s report—again— raises questions about the bias of the process.

Avoiding Other Pitfalls

Once the investigative process has concluded and the employer has the final report, it is just as important to follow through. If the subject will be disciplined (especially if the subject has due process rights, as many public agency employees do), the investigative report will very likely be disclosed to the subject.

The employer should follow up with the complainant to explain the next steps and address any concerns the complainant may have. There are confidentiality issues (especially as related to personnel actions) that may prevent the employer from disclosing everything to the complainant, but the complainant should be provided some closure and reminded of the employer’s prohibition on retaliation.

If no misconduct is found, it is also important to follow up with the complainant and—to the extent possible—explain the basis for that finding. Thomashow stated that the investigation done by MSU “was brief and sloppy and made [her] feel worthless.”¹⁸ She was further upset by the intimation in the report that she could not distinguish between sexual assault and a medical procedure. In cases where the complainant may experience difficulty from the investigation process or the findings, the employer may want to provide the complainant with information relating to employee assistance programs or other benefits.

In the wake of workplace sexual harassment and discrimination scandals, and the rise of #MeToo, employers must be aware not only of their legal obligations, but of the perceptions about how they carry out these legal obligations. Providing an objective, unbiased, and thorough investigation demonstrates the employer’s seriousness in response to allegations of misconduct, allows for complainants to be heard, and provides due process to the accused.

Genevieve Ng is a partner with Sloan Sakai Yeung & Wong LLP, a law firm with offices in Sacramento, Berkeley, and San Francisco. She specializes in representing public agency employers in matters of labor relations and employment law. She has conducted several workplace investigations as part of her practice. This article is updated from the original article that appeared in Bender’s California Labor and Employment Bulletin. Copyright 2018 LexisNexis Matthew Bender.

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1. Larry Nassar, the former national team doctor for USA Gymnastics, the governing body for gymnastics in the United States, was convicted on numerous counts of sexual assault against young women, several of whom are well-known Olympic gymnasts, and was sentenced to a minimum of 140 years in prison. He received a 60-year federal sentence for child pornography charges, a 40- to 175-year sentence to state prison after pleading guilty to seven counts of sexual assault of minors, and an additional 40- to 125-year sentence to state prison after pleading guilty to three additional counts of sexual assault. Nassar’s sentences will be served consecutively. 2. Kate Wells, Nassar Continued to Work During MSU Police Investigation, Victims Say Assaults Continued, Michigan Public Radio (Dec. 20, 2017), http://michiganradio.org/post/nassar-continued-work-during-msu-police-investigation-victims-say-assaults-continued. 3. Title IX is federal civil rights legislation passed as part of the Education Amendments of 1972, which are codified at 20 U.S.C.S. §§ 1681-1688. 4. Caroline Kitchener, The Nassar Investigation That Never Made Headlines, The aTlanTic (Jan. 29, 2018), https://www.theatlantic.com/education/archive/2018/01/the-nassar-investigation-that-never-made-headlines/551717/. 5. Christopher Haxel & Matt Mencarini, Rachael Denhollander: ‘MSU Officials Silenced’ Larry Nassar’s Victims, lansing sTaTeJouRnal (Nov. 22, 2017), https://www.lansingstatejournal.com/story/news/local/2017/11/22/rachael-denhollander-msu-officials-silenced-larry-nassars-victims/889919001/. 6. The expert witness, Dr. Brooke Lemmen, resigned from her position in March 2017 after MSU found that she had removed several boxes of confidential treatment records from MSU’s Sports Medicine Clinic at Nassar’s request 7.See Haxel & Mencarini, supra note 5. 8. Although complaints of bullying are not subject to the same legal requirements as allegations of harassment and discrimination, many employers include bullying in their workplace harassment and discrimination policies. Also, at first blush, bullying may be tied to legally protected traits, so it is a good practice to investigate such allegations to determine whether the conduct implicates legally defined harassment or discrimination. 9. Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C.S. § 2000e et seq. See also 29 C.F.R. § 1604.11(d) (employer must take “immediate and appropriate corrective action” when sexual harassment is alleged); Cal. Gov’t Code § 12940(j)(1) (same). 10. EEOC Notice No. 915.002, Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, June 18, 1999 https://www.eeoc.gov/policy/docs/harassment.html#_ftn169m. 11. This article does not purport to be an exhaustive analysis of what makes an effective investigator or investigation. It also does not discuss what actions an employer should take during an investigation such as placing the subject on administrative leave or removing the complainant from the situation temporarily with the complainant’s consent. It is merely a summary to provide some guidance to employers when faced with complaints of harassment, discrimination, or bullying. 12. In Mendoza v. W. Med. Ctr. Santa Ana, 222 Cal. App. 4th 1334 (2014), Mendoza complained of sexual harassment by his supervisor. After an investigation, the employer terminated both Mendoza and the supervisor for engaging in inappropriate conduct. A jury found that the employer wrongfully terminated Mendoza and awarded him over $200,000. The verdict was reversed due an incorrect jury instruction, and the court remanded the case for a new trial. In its decision, the court found numerous shortcomings in the employer’s investigation, which was conducted by the employee’s supervisor and not a trained professional, including lack of an investigative plan, delays in scheduling interviews, failure to take witness statements, interviewing only the complainant and the subject, and interviewing them simultaneously. The court stated, “[t]he 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.” 222 Cal. App. 4th at 1344-45. Ouch. 13. Haxel & Mencarini, supra note 5. 14. Strampel also told Nassar he would have a job waiting for him after the investigation. Aside from the fact that Strampel should not have made such statements or promises while the investigation was ongoing, there were criminal and other investigations taking place close in time to these and other allegations. Generally, an employer should not place its own investigation in abeyance while awaiting the outcome of any criminal investigation. The employer’s investigation should not interfere with the criminal investigation and should not rely on the criminal investigation’s findings as the basis of its own discipline. An employer has different requirements of proof to discipline an employee (preponderance of the evidence) compared to the criminal justice system (beyond a reasonable doubt). 15. The author of this article does not know of Moore or her qualifications, nor has she been able to obtain a copy of the 2014 reports to MSU or Thomashow related to Thomashow’s allegations. 16. Jennifer Chambers, MSU Hid Details of Title IX Report From Nassar Victim, deTRoiT news (Jan. 25, 2018),https://www.detroitnews.com/story/news/local/michigan/2018/01/26/msu-title-ix-investigation-reports/109852510/. 17. Chambers, supra note 16. 18. Chambers, supra note 16.