Recent Federal Appeals Court Decision Highlights Importance of Unbiased Investigations in Defending Against Retaliation Claims

Most employers are cognizant of their obligation to conduct an investigation in response to allegations of sexual harassment in the workplace. However, a recent federal court of appeals decision highlights the need for such investigations to be thorough and unbiased and not rely too much on information from witnesses with potentially improper motivations.

In Byrnes v. St. Catherine Hospital et al., Matthew Byrnes, a surgeon for St. Catherine Hospital, filed a complaint with the hospital’s Medical Executive Committee (MEC) president alleging that another doctor at the hospital had sexually harassed nurses, failed to wear gloves during sensitive exams, and had improperly handled one type of operation. The MEC president showed Dr. Byrnes’ complaint to the doctor who was the subject of the complaint, and the MEC president and Human Resources subsequently conducted an internal investigation regarding the complaint. As part of this investigation, one nurse told the MEC president that the accused doctor had touched her in an inappropriate way. The MEC president also obtained information substantiating the allegations about the accused doctor’s alleged lack of hand hygiene as well as disagreement from one nurse regarding the accused doctor’s patient care.

Following the investigation, the MEC president met with the MEC, shared the details of the complaint, and told the MEC that he had investigated the allegations and found them to be unsubstantiated. Following the MEC meeting, the MEC president and other MEC members informed Dr. Byrnes that his complaint was found to be without merit. Dr. Byrnes challenged the adequacy of the MEC president’s investigation and reiterated his complaints about his colleague. The MEC met again to discuss Dr. Byrnes’ concerns and his insistence that the allegations were true. During this meeting, the hospital’s Chief of Surgery expressed her view that Dr. Byrnes “seemed to be very disturbed, writing a letter like that about a colleague;” nonetheless, the Chief of Surgery determined that Dr. Byrnes remained competent, committed to quality care, and qualified for employment, and the hospital reappointed Dr. Byrnes to the medical staff.

However, shortly after Dr. Byrnes’ reappointment, the MEC president told the hospital’s general counsel that Dr. Byrnes had made false allegations against another member of the hospital’s staff, requested that Dr. Byrnes undergo a psychological evaluation, and stated that the MEC unanimously agreed that such evaluation was in the best interest of the hospital. Dr. Byrnes responded to the hospital’s request via email stating that the request was “tantamount to retaliation,” restated his complaints about his colleague, and demanded that the MEC retract its request for a psychological evaluation. The MEC did ultimately retract the request for an evaluation.

The following month, the hospital received a subpoena from the state medical board seeking information in connection with an anonymous complaint that had been filed alleging erratic behavior and dangerous violations of the standard of patient care by Dr. Byrnes. Dr. Byrnes contended that the doctor he had accused of sexual harassment had filed the anonymous complaint with the state medical board in retaliation for Dr. Byrnes’ complaint to the hospital regarding the accused doctor. Centura Health Corporation, the nonprofit corporation that managed the clinical practices of St. Catherine Hospital, conducted an internal investigation regarding Dr. Byrnes and the matters raised in the anonymous complaint to the state medical board. Although Centura interviewed approximately a dozen individuals as part of its investigation, it did not notify Dr. Byrnes about the investigation or interview him as part of the investigation, nor did it interview any nurses who might have had information relevant to the investigation.

Following Centura’s investigation, Centura recommended that Dr. Byrnes be fired based on the information obtained during the investigation. Dr. Byrnes was subsequently informed that he was being terminated without cause in accordance with his employment agreement, which allowed either party to terminate the employment relationship for any reason or no reason with 90 days written notice.

After his termination, Dr. Byrnes sued the hospital and Centura alleging retaliation in violation of Title VII. The lower court initially found in favor of the hospital and Centura after concluding that Dr. Byrnes could not show that his termination was caused by his complaint and that the hospital and Centura had offered up various nonretaliatory reasons for Dr. Byrnes’ termination — which Dr. Byrnes could not show were not the real reasons for his termination. However, on appeal, the Tenth Circuit Court of Appeals overturned the lower court’s decision and ruled that Dr. Byrnes’ claim could proceed on a “cat’s paw” theory of liability, pursuant to which an employer may be liable for discrimination or retaliation if an unbiased decision-maker follows the biased recommendation of another employee, even if the final decision-maker does not have discriminatory intent themselves.

In reversing the lower court, the Tenth Circuit emphasized that a reasonable jury could conclude that the hospital and Centura had a retaliatory motivation based on the brief time period between Dr. Byrnes’ last complaint and his termination, as well as the one-sided, unfair, and biased investigation conducted by Centura. The court noted that “the most glaring deficiency in [the] investigation was their failure to interview Dr. Byrnes,” and the court further remarked on Centura’s seeming reliance only on evidence to the detriment of Dr. Byrnes, despite the mixed evidence obtained during the investigation.

The Byrnes case serves as a reminder to employers that all investigations regarding alleged harassment or other misconduct must be thorough and unbiased. Among other things, employers should ensure that:

• The individuals conducting the investigation are unbiased and do not have a stake in the outcome of the investigation;
• Such investigators are well-versed in applicable laws and policies and are trained on best practices for conducting investigations;
• All relevant witnesses are interviewed as part of the investigation;
• The individual accused of harassment or misconduct is informed of the evidence obtained during the investigation and is provided an adequate opportunity to respond before a decision is made and/or action is taken;
• The investigation does not rely on biased input from supervisors or other employees with an axe to grind;
• Information obtained during the investigation is independently verified via documentation or corroborating testimony to the extent possible;
• Decisions are not rushed, and adequate time is allowed for a thorough investigation to be completed and documented;
• The final decision-maker conducts an independent and objective evaluation of the information and documentation obtained during the investigation and asks questions or requests additional information where necessary; and
• Individuals are treated similarly and consistent with applicable policies when it comes to investigatory input and/or disciplinary action.

Employers with questions regarding the appropriate action to be taken during or in response to an investigation should consult with experienced employment counsel.