intrusion and interference with his privacy. The Court of Appeals of Texas rejected the locker analogy, noting that the locker was specifically for the employee to store personal items, whereas the computer was provided by the employer for his work, and “the email messages contained on the company computer were not McLaren’s
personal property, but were merely an inherent part of the office environment.”
The court added that even if he had a reasonable expectation of privacy it would be outweighed by the company’s compelling interest in investigating and resolving the accusations of sexual harassment and inventory issues given that he had indicated some of the email messages were relevant to the investigation. The Court of Appeals of Texas affirmed the trial court’s dismissal of the case for failing to state a cause of action.
Tip: There are three different tort actions for invasion of privacy. Fact finders must understand how each might affect an investigation and interviews.
7.7.5 Emotional Distress or Outrage
Many cases against investigators contain claims of emotional distress or outrage.
In general, in order to prevail on a claim of this nature, the plaintiff must prove the defendant acted in an outrageous and highly offensive manner that was highly probable of inflicting severe emotional distress upon another. In some states, plaintiffs may have to show physical manifestations of the duress.
In Agis, a restaurant manager called a staff meeting, told everyone that there was stealing going on, and stated he was going to fire everyone present starting with the letter “A” until the thief stepped forward.83 In a misguided move, using discipline in lieu of fact finding and verification, he summarily fired Agis who immediately became hysterical. She suffered anguish and lost wages. She filed suit for intentional
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infliction of emotional distress, but the court granted summary judgment to the defendant because the state did not recognize a cause of action for emotional distress without physical injury. The Supreme Court of Massachusetts reversed. It held the plaintiffs, the waitress and her husband, did state, even without physical injury, a cause of action for intentional or reckless infliction of emotional distress and it reinstated their claims.
In Bodewig a customer accused the plaintiff, a young sales clerk, of taking four $5 bills she left on the checkout counter while she went to get a sale item. The manager intervened. He pulled out the clerk’s apron pockets, checked the area around the register and found nothing. He offered to check her register and the customer demanded he do so. The register balanced perfectly. The customer continued to
cause a commotion and would not leave. Finally, the manager told a female assistant manager to take the clerk to the restroom and search her. The assistant manager offered to allow the customer to watch the search. The clerk stripped to her underwear with the two watching her. The customer, when asked, said the clerk did not have to remove her underwear since she could see through it. That evening the customer found the money in her purse, called the mother of the clerk [whom she knew], and called the store. Plaintiff sued for outrage. The trial court granted summary judgment for the store and customer. The Court of Appeals of Oregon found
there was sufficient evidence that a jury might find the manager, “after concluding that plaintiff did not take the customer’s money, put her through the degrading and humiliating experience of submitting to a strip search … that the manager’s conduct exceeded the bounds of social toleration and was in reckless disregard of its predictable effects on plaintiff.” It also held there was sufficient evidence a jury might conclude the customer intended to humiliate plaintiff. It remanded the case for trial.84
In Olivas, an employee’s missing paycheck was cashed at a local liquor store.
Co-workers accused the employee’s brother who also worked for the company. An
employee made copies of some employee pictures, showed them to the liquor owner, and accused the brother of theft and forgery. The owner signed a criminal complaint against the brother. Other employees accused the brother in their conversations, with the victim and brother’s landlady. The brother was fired. The criminal charges were dismissed. The brother filed suit. The Superior Court of Connecticut denied the company’s motion to strike plaintiff’s claim for emotional distress. The court held that the discharge, taken with the accusation of theft and forgery, could amount to “extreme and outrageous conduct.”85
In Tenold, the plaintiff worked for the defendant’s railroad company that was part of its forestry operation. Plaintiff obtained approval from the site security supervisor to remove some railroad ties. The site security supervisor told him to check the price with the company. Plaintiff assumed this meant he could pay for the items later. The next day, the same supervisor gave him permission to use company equipment to remove the ties. A week later, a contract security officer, who lived onsite, told the site security supervisor the plaintiff had delivered some railroad ties
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to a ranch. The site security supervisor reported it to his superior and a company security supervisor. The company security supervisor directed a deputy sheriff (the company paid the county for the deputy to be assigned full-time to patrol the company’s property) to investigate. The deputy sheriff told the ranch owner that the plaintiff had taken 600 ties. The site security supervisor interviewed two employees who stated they had helped deliver the ties and reported that plaintiff told them that he intended to pay for the ties. The site security supervisor did not pass the later remark on to his company superiors or the deputy.
A union representative, the site security supervisor, and his manager met with
plaintiff who admitted taking the ties, but stated he had permission from the site security supervisor. The manager reported to his superiors that the plaintiff admitted taking the ties and “he really offered no excuses or reasons for taking the ties without paying for them.” The company terminated plaintiff’s employment. The deputy sheriff cited plaintiff for criminal theft. His report did not indicate plaintiff’s claim he had permission to take the ties and intended to pay for them. Plaintiff was
indicted but the district attorney dismissed the charges after he learned some of the confiscated ties did not belong to the company and had been paid for by plaintiff.
Plaintiff filed civil suit against the company. Evidence was presented that the site security supervisor bore ill will toward plaintiff. An employee testified that two years earlier the site security supervisor had stated, “There’s more than one way to get rid of [plaintiff].” The company security supervisor testified another manager involved in the investigation had stated, “I don’t care what the court system does or anything else, that I—I will have the man’s job.” He also noted the site security supervisor had stated plaintiff was a drug addict and he had caught plaintiff with marijuana two years earlier. The site security supervisor’s foster son even testified he overheard his father state plaintiff was a drunk, a drug user, and had a methamphetamine lab in his home. The jury awarded damages of approximately $2.4 mil-
lion against the company for defamation, malicious prosecution (discussed later), and intentional infliction of emotional distress, and $150,000 in damages against the site security supervisor for defamation and intentional infliction of emotional distress. The Court of Appeals of Oregon affirmed there was sufficient evidence for a jury to conclude defendants engaged in an extraordinary and intolerable campaign to defame, terminate, and prosecute plaintiff.86
In conclusion, investigators must be careful to not engage in outrageous con-
duct that is highly likely to inflict severe emotional distress upon subject employees.
Unreasonable investigative methods and interrogations include such activities as gathering immaterial personal information on employees, threatening employees
with arrest, shouting at and physically threatening employees during interroga-
&n
bsp; tions, and similar conduct.
Clearly, fact finders must be careful not to engage in intentional outrageous
conduct that is highly likely to inflict severe emotional distress upon an employee.
Unreasonable investigative methods and interrogations are unacceptable. This
includes such activities as gathering immaterial personal information on employees,
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threatening employees with arrest, shouting at employees during an interrogation, and similar conduct. Also, an employee might file suit against an investigator and employer for negligent infliction of emotional distress where the employer failed to reasonably train and supervise the employee in performance of the investigation.
Here, too, the conduct of the defendant must be extreme and highly probable of
inducing severe emotional distress.
7.8 Negligent Investigation
7.8.1 A New Tort Action
Most lawsuits against fact finders and their private employers involve specific claims of injury, such as defamation, invasion of privacy, wrongful discharge, malicious prosecution, and emotional distress. In recent years, plaintiffs have added a new tort action for negligent investigation. The courts have not universally endorsed this concept because it often conflicts with the employment at-will doctrine and other available legal remedies. For example, assume an at-will employee (see Section 7.10.2) is subjected of criminal conduct. The company conducts a shoddy investigation, terminates the employee, and unsuccessfully prosecutes. Further, the com-
pany tells co-workers he was fired for theft. Should he be able to sue for negligent investigation when the company could have terminated him under the employment
at-will doctrine without ever investigating the matter? Also, because he can sue for defamation and for malicious prosecution, many courts question the need to recognize a new tort action for negligent investigation.
In Sears, the plaintiff worked as an independent insurance agent.87 He had been with the company several years when a policyholder wrote to the company and stated the agent, an insurance adjuster, and a local contractor were engaged in a fraudulent kickback scheme. The company looked at his files, determined a few might be suspicious, and hired a private investigator. The investigator never obtained any direct evidence against the plaintiff, but still advised the company he should be considered a subject because of two suspicious claims. The company fired the plaintiff, and it reported him to several federal and state law enforcement and regulatory agencies.
The adjuster and contractor were indicted, and the contractor was convicted. The authorities never pressed charges against the plaintiff, and the insurance licensing board refused the company’s efforts to have his license suspended.
Sears, who claimed the investigation destroyed his local reputation, sued and
won damages for negligent investigation and emotional distress. The appellate
court affirmed damages for emotional distress, and it affirmed a cause of action for negligent investigation, but overturned the judgment for insufficient evidence.
The Supreme Court of Texas stated the conduct of the defendant in conducting
the investigation and reporting its suspicions to the authorities did not amount to outrageous behavior. There was “certainly no evidence that (defendant) knew the
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reports to be false or manipulated the findings so that Sears would be subject to criminal or other liability.” The court, in a case of first impression, also declined “to recognize a negligent-investigation cause of action in this circumstance, because to do so would substantially alter the parties’ at-will relationship.”
The Appeals Court of Massachusetts affirmed the denial of a negligent inves-
tigation claim in O’Connell.88 The plaintiff, a former bank teller who had left to take a higher paying position with a new company, was charged sometime afterward with theft of $4,800. The theft involved a single transaction posted, in her last few days, to two different accounts. The transaction occurred at the window of a teller trainee working adjacent to plaintiff. The investigation of the theft was difficult because the plaintiff’s daily journals for the day of the theft were missing (misfiled by the bank with the trainee’s records) and the time clocks on the bank videotapes were out-of-synch with the transaction logs. As a result, the investigator did not further analyze the video. When interviewed by the bank, she stated she did not work the teller line where the checks were cashed, but the video showed she did. The bank concluded she was the only person on that line who had enough knowledge to make the transactions. After she was charged, her attorney prevailed upon the bank to retain a handwriting expert. He concluded the writing on the
documents was not the plaintiff’s. A municipal judge found her not guilty. The
plaintiff sued. During the civil trial, the videotape, which the bank denied having, resurfaced, and the plaintiff and bank together carefully synched the film with the teller’s transactions. It showed a hand, not the plaintiff’s, reaching in to enter the fraudulent transaction. Regarding the plaintiff’s negligent transaction claim, the court held the duty of investigation ran to the party requesting the investigation and not the party under investigation. Although the party under investigation might be injured, the appeals court stated, “… the law makes remedies available—
actions for defamation, malicious prosecution, and tortuous infliction of emotional distress.” (Several months later the bank filed charges for other thefts against the male supervisor of the teller trainee.)
In Devis, a bank called the police in the belief that the plaintiff was attempting to cash a stolen check on the account of a customer who had posted a warning about stolen checks.89 The customer had written separate checks to a Davis and a Devis, and Davis stole some blank checks. When Devis attempted to cash a lawful check, he was arrested. Based on the bank’s failure to properly check his identification, he sued for negligent investigation and defamation. The California Court of Appeal affirmed summary judgment for defendant bank. Under state law, reports
to the police are part of a judicial proceeding and privileged communications when made in good faith. The appeal court, in a case of first impression, stated, “The privilege must extend to actions based on negligent investigation, for if it did not, the privilege for reports to the police would be eviscerated.”
In conclusion, the courts have been reluctant to recognize a new and distinct
common law cause of action for negligent investigation on the grounds that it
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conflicts with the employment at-will doctrine, and that there are other established legal remedies available to plaintiffs.
7.8.2 Implicit and Explicit Duties to Investigate
Although the courts have been reluctant to recognize a new common law action for negligent investigation, there are circumstances where employers have overarching duties that contain explicit or implicit duties to investigate. A duty to investigate, for discussion purposes here, may arise under statute, regulation, employment and labor contracts, and tort law governing the duty to hire and supervise employees.
Further, as noted, a failure to investigate may enhance liability exposure for other tort actions.
First, for example, civil rights statutes and regulations prohibit various forms of workplace discrimination. This broad duty includes the obligation to investigate complaints of harassment. As noted in Fuller and Valdez, the courts were critical of defendant employers for their deficient investigations. In Fuller, because of a lack of investigative thoroughness and timeliness, the employer was unable to show it took appropriate remedial measures.90 In Valdez, the shoddy investigation resulted in the wrong employee being terminated.91 When coupled with other facts, the
court found the company had engaged in national origin discrimination. Also, for example, the general duty clause of the Occupat
ional Health and Safety Act (and similar clauses under state plan programs) requires employers to maintain an environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” If an employee demonstrated a propensity toward violence, which the company did not investigate, and later the employee injured or killed another employee, the employer might be cited for violation of the general duty clause. The failure to investigate or to do a reasonable investigation may be an explicit or implicit issue in administrative and judicial proceedings when an employer owes a broader statutory duty to employees.
Second, regarding the duty to properly hire and supervise employees, in Salinas, the employer was found liable for the negligent hiring (i.e., failing to do a reasonable background investigation) of a taxi driver who had a felony record and later assaulted a customer.92 In Saine, the Supreme Court of Arkansas held a cable company could be sued for negligent supervision and retention based on its alleged failure to investigate a female’s complaint about a cable installer who subsequently assaulted and attempted to murder another female customer.93
Third, regarding the issue of a contract duty to investigate, employers need to remember that not all employees are at-will. There are countless arbitration decisions under collective bargaining agreements against employers who have failed
to properly investigate and satisfy their burden of establishing cause, good cause, or similar standard when seeking to discipline and terminate employees for their misconduct. Fourth, the case of Mendez illustrates the enhanced risk of employers being held liable for other torts based upon a failure to reasonably investigate
Legal Challenges and Litigation Avoidance ◾ 245
workplace incidents.94 Here, the Appeals Court of Massachusetts affirmed a defamation judgment against the defendant employer based on its failure to “verify its truth, in circumstances where verification was practical.”
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