Dirty Deeds Done Dirt Cheap—Another Example of a Bad Harassment Investigation

A recent case out of the Second Circuit Court of Appeals demonstrates the importance of following up on all evidence produced by parties and witnesses in an investigation into a sexual harassment complaint. In Vasquez v. Empress Ambulance Service, Inc., Docket No. 15-3239-cv, August 29, 2016), Ms. Vasquez complained to her employer that a co-worker had subjected her to unwanted sexual overtures, including a texted picture of his erect penis. The employer commenced an immediate investigation. In anticipation of the complaint against him, the accused co-worker manipulated text messages, took screen shots, and printed them out. The final product purported to show that Ms. Vasquez's consent to and solicitation of a sexual relationship. In reliance on those documents, Vasquez's employer immediately fired her on the ground that she had engaged in sexual harassment. The employer refused to allow Ms. Vasquez to look at the documents produced by the accused and also refused to accept evidence in the form of text messages from Ms. Vasquez. Ms. Vasquez subsequently filed an action against her employer alleging that she was terminated in retaliation for complaining about sexual harassment.

The Second Circuit Court of Appeals held that the employer could be held liable for terminating Ms. Vasquez in reliance on the false information that it deemed retaliatory under the "cat's paw" liability theory. The Court explained that the "cat's paw" metaphor now "refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action." The Second Circuit extended the "cat's paw" liability to manipulative retaliatory actions by non-supervisors when the employer is negligent in allowing the non-supervisory employee's false allegations, and the retaliatory intent behind them, to achieve their desired end.

The Court found that Vasquez's employer was negligent in crediting the accused's accusations to the exclusion of all other evidence, and specifically declining to examine contrary evidence tendered by Vasquez.

Practice Pointer: In conducting an investigation into any complaint of harassment, it is important that the employer gather and examine all evidence from both the complainant and the accused and interview all witnesses identified by them. While documentary evidence can be very persuasive, it can also be falsified, so it is also important to make an effort to check the facts and authenticity of any documents. For example, in the Vasquez case, the Court noted in its final footnote that the employer should have questioned the text messages submitted by the accused because the exchange indicated that the accused's texting partner was asleep at a time when Vasquez was actually on shift working for the employer. A quick check of Vasquez's time records would have revealed the inconsistency. And it might have saved this employer a lot of time and money.