For Workplace Investigations, an Outside Investigator is Better

BY Gene R. Thornton, Esq., AWI-CH

therapist addressing sexual harassment at work

A workplace investigation is usually conducted in response to an aggrieved employee complaining about misconduct to an employer’s human resources manager or other member of management.  Initial questioning of the aggrieved employee reveals the outlines of the complaint—when and where the alleged act occurred, who committed it, and who may have witnessed it.  That defines the scope of the investigation.

However, it is common for the investigator to subsequently encounter circumstances that raise the question of whether the scope of the investigation should be formally expanded:

  • the aggrieved employee may voice additional complaints against the alleged offender;
  • the person accused may point to mitigating circumstances the aggrieved employee said nothing about;
  • the aggrieved employee (or witnesses) may assert that the alleged offender’s conduct is part of a larger pattern and practice at the company, mentioning additional persons who had purportedly behaved in more or less the same manner.

What at first seemed like a simple investigation of a single incident can mushroom into a free-ranging examination of systemic problems over an extended period of time.  One thing leads to another.

An “Internal Review” is an Inadequate Investigation

A recent incident in the office of the Denver District Attorney, Beth McCann, is a case in point.  According to published reports, a Deputy District Attorney under McCann’s supervision, Michael Song, was accused of making inappropriate racial remarks during a jury trial, illegally attempting to keep Latinos off a jury in the trial of a Latino defendant, sexist and inappropriate comments in office banter, and unethically ordering a witness not to talk to defense counsel.  An “internal review” (which sounds suspiciously like a euphemism for a shoddy investigation) was done into the allegations against Song.  Based on the internal review, McCann decided that Song’s actions warranted only “counseling.”  Song’s job was safe.

But that resolution did not sit well with at least one other employee, Chief Deputy District Attorney Adrienne Greene.  Greene alleged that in a separate incident, McCann’s second-in-charge Deputy District Attorney, Ryan Brackley, took “half swings” with a baseball bat at her head multiple times during an argument in her office.  Greene said that Brackley was mad at her over a letter of recommendation Greene had written.  Greene filed a formal complaint.  Greene’s allegations against Brackley implicated the overall environment of McCann’s office.  Allegedly, the failure of McCann to take more serious action against Song created an atmosphere where employees were afraid to report workplace misconduct such as the baseball bat incident.

Outside Investigator Uncovers More Incidents

This time, McCann hired an outside investigator.  That investigation revealed that Brackley had also sent a group text threatening to fire the “f***ing fat ass” of a certain female prosecutor.  Additionally, Brackley was also accused of yelling at a female subordinate, belittling her during a staff meeting, and accusing her of pouting when she became quiet in response to his demand that she stop talking.  The outside investigator found evidence to support all those claims.

The allegations against Brackley resulted only in McCann ordering Brackley to:

  • remove all baseball paraphernalia from his office (Yeah, changing the décor should fix the problem!);
  • take part in mediation sessions with the women he was accused of bullying (As if the women should enter some sort of compromise with Brackley!); and
  • take executive training from the outside investigator’s firm (No conflict of interest there!).

Brackley remained McCann’s second-in-command.  Like Song, his job was safe.

But when talk radio shows and a public protest lambasted McCann as—once again—too lenient, McCann announced that Brackley would resign.  Shortly thereafter, McCann announced that Song would also be leaving the office.

In a news release, McCann stated, “. . . I cannot condone nor allow the type of behavior about which I have learned through this investigation and from speaking to some of you outside this investigation.”  Well, better late than never for DA McCann.

Sources:

Colorado Politics, Aug. 7, 2019.

For a high-quality, legally-defensible, and reasonably-priced workplace investigation, employers should contact Gene R. Thornton, Esq., AWI-CH at Thornton Workplace Investigations, LLC.

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