In a recent case out of the Third Circuit Court of Appeals, which covers Pennsylvania, New Jersey and Delaware, the Court provides helpful guidance to employers who are conducting investigations of employees, especially when there is a concern that those employees may later file a complaint against the employer alleging discrimination or harassment.
In the case of Jones v. SEPTA, No. 14-3814 (3d. Cir. 2015), the Court was faced with an employer who was in the process of investigating an employee who allegedly submitted fraudulent timesheets, when the employee filed a sexual harassment complaint against her supervisor, the same supervisor who raised the allegations about the timesheets. Needless to say, such a situation puts an employer in a difficult situation, but also is not uncommon.
SEPTA suspended the employee in question with pay while it investigated both claims. Finding merit in some of the employee’s sexual harassment claims, SEPTA then disciplined the supervisor. In addition, SEPTA continued its investigation of the alleged fraudulent timesheet issue by looking at evidence which was separate and distinct from what the harassing supervisor had reported, and it reached the conclusion that the employee in fact had filed fraudulent timesheets. The employer then suspended the employee in question without pay and then terminated the employee. The employee sued SEPTA and the supervisor claiming sex discrimination, sexual harassment and retaliation.
The Court found that the original suspension with pay was not an adverse employment action and, as a result, could not be the basis of a discrimination claim. However, the Court was careful to state that it did not need to answer the question of whether a suspension with pay could be an adverse employment action in the context of retaliation, just that it was not, without more, a substantive adverse employment action. In addition, the Court went on to explain that because the employer conducted an independent investigation of the allegations against the employee that was separate from the allegations made by the harassing supervisor, the employee could not show a nexus between the final employment action of firing, which was based on that separate investigation, and the improper conduct of the supervisor. Put another way, even if the allegations of sexual harassment were true, the Court found it did not matter because the employment action was based on evidence that in no way involved this supervisor.
As a result, employers are well advised, especially in cases that may be subject to suit, to suspend with pay until the completion of the investigation and, if there are allegations of wrongdoing made by the employee in question against their supervisor, remove the supervisor to the extent possible from the investigation process to take that issue out of the equation. For public employees, while the Court noted that suspensions with pay are not an adverse employment action, the Court did not address whether not the employee was still entitled to a Loudermill hearing when imposing a suspension with pay, given that it appears that SEPTA provided some type of notice and meeting to the employee when the suspension with pay was imposed, and, as a result, public employers are well advised to still provide such a hearing even when suspending with pay..
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
