Edward P. Lynch, Gregory C. Parliman, Patrick J. McCarthy, Michael T. Bissinger, Theresa A. Kelly, and Mary B. Rogers, Editors
Pitney Hardin LLP

Vol. 16, No. 3
January 2008

EMPLOYER RETALIATION

What's your role in workplace investigations ― truth-finder or fact-finder?

Have you ever been in the middle of investigating an employee's complaint, trying to find out exactly what happened, only to become bogged down by questions about who's telling the truth? Doubts about truthfulness are often accompanied by the fear that you'll face more trouble if you choose to believe the wrong employee. You can now breathe a sigh of relief: The New Jersey Appellate Division recently ruled that employers can escape liability when making credibility determinations in internal investigations.

Facts

Lowe's employee John Waldruff filed an internal complaint against his manager, Charles Stephens, after he was demoted and criticized for spending too much time with HR Manager Anne Siwula. Lowe's district HR manager investigated Waldruff's complaint. During the investigation, Siwula complained that Stephens made sexually inappropriate comments to her.

Specifically, Siwula claimed that Stephens asked her if she and her boyfriend had sex together. She also alleged that after she commented that she wanted to attend a corporate meeting, Stephens responded that he "would like to take me but then [we] would have to sleep in the same bed and that he did not think that his wife or [her] boyfriend would like it." In addition, she claimed he told her that she "might meet someone at this store and fall in love with him and then go back to a hotel room and have the most passionate night of [her] life."

Stephens denied making any of those comments. Based largely on both employees' demeanor, Lowe's found Siwula more credible. The company noted that during the investigative interview, Stephens acted agitated, defensive, and trite and contradicted himself. Lowe's also received notice that after the interview, Stephens contacted a former coworker and asked him "to cover" for his behavior during a New Year's Eve gathering.

Lowe's terminated Stephens for violating its antiharassment policy and disregarding its instructions not to contact witnesses during the investigation. He sued Lowe's, claiming it violated the New Jersey Conscientious Employee Protection Act (CEPA) by firing him for complaining about and refusing to participate in activities he thought were illegal. His claim referred to another employee Lowe's had terminated for theft who later sued the company for age discrimination. Stephens claimed that Lowe's asked him to provide a false statement in connection with the age discrimination lawsuit and that he was fired because he refused to comply with that request.

Appellate Division's decision

CEPA prohibits employers from retaliating against employees who "blow the whistle" on illegal conduct. To prevail in a CEPA claim, an employee must show that:

1. he reasonably believed the employer's conduct violated a law, rule, regulation, or public policy;
2. he performed whistleblowing activity;
3. the employer took an adverse action against him; and
4. there is a causal connection between the whistleblowing and the adverse action.

Copyright 2008 M. Lee Smith Publishers LLC

This newsletter is intended for general information purposes only, and should not be used or taken as legal advice or legal opinion on any specific facts or circumstances.