Investigating Employee Misconduct and Defending Claims of Wrongful Termination
With wrongful termination lawsuits on the rise across many industries, it has become more important than ever for employers to conduct thorough and well-documented investigations of alleged employee misconduct before deciding whether to impose disciplinary measures against an employee. This point was recently confirmed by the Second Department’s decision in Daniel Hutting v. Independent Living, Inc., _ A.D.3d _ (2d Dep’t Oct. 13, 2021), an appeal successfully argued on behalf of the defendant employer by Bleakley Platt partner Joseph DeGiuseppe, Jr.
In Hutting, the employer, Independent Living, Inc. (ILI), a non-profit corporation, had dismissed the plaintiff from his managerial position after 14 years of employment because two of his subordinates had reported his request that they sign falsified gas expense reimbursement vouchers as their own, when in fact they were for expenses incurred by the plaintiff during his unauthorized use of ILI vehicles.
ILI conducted a well-documented investigation of the reported misconduct, which included thorough review of relevant documentation and the taking of witness statements, including the statement of Mr. Hutting himself. Based upon the findings of its investigation, ILI decided that termination of Mr. Hutting’s employment was fully justified.
Following his dismissal, the plaintiff commenced an action alleging that his firing was motivated by sexual orientation discrimination, and additionally that it was retaliatory in nature following his use of Family Medical Leave. Affirming the decision of the lower court, the Second Department upheld the dismissal of all claims, noting that ILI had proffered unrebutted evidence of legitimate, nondiscriminatory reasons for its termination of the plaintiff’s employment and by demonstrating the absence of material issues of triable fact as to whether its explanations were pretextual. The evidence marshaled during ILI’s investigation of the plaintiff’s misconduct, prior to termination of his employment, played a key role in demonstrating the lawful, non-discriminatory reasons for the plaintiff’s dismissal.
This case demonstrates once again the importance of thoroughly investigating employee misconduct and maintaining meticulous records of such investigations, including gathering signed witness statements if possible. Inasmuch as litigation may not always be foreseeable when an employee is terminated, good record keeping in the ordinary course is a prophylactic measure that can be of immense importance in the event a claim of unlawful dismissal is later asserted.
Joseph DeGiuseppe is the head of the Labor and Employment practice group at Bleakley Platt & Schmidt, and handled the appeal in the Hutting case. He and other attorneys at Bleakley Platt have significant experience in handling internal investigations and in defending claims alleging workplace discrimination and wrongful termination. Bleakley Platt regularly advises hospitals and other healthcare providers in all legal areas, including labor and employment law.