Investigative Interviewing: Psychology, Method and Practice

by Ferraro (CPP, SPHR), Eugene

  that he was told to pay by the assistant department manager.124 Later that day, the loss prevention manager, at the direction of the assistant store manager, told him to pay more or unload it. He left work and returned with the wood the next day. The company gave him his money back and fired him for theft. Although the Court of

  Appeals of Texas reversed the summary judgment in favor of the defendant store on the issue of defamation, it affirmed judgment on the issue of wrongful discharge.

  The employee argued he had an expressed agreement based on a company policy of

  providing three warnings prior to termination. The court held employee practices and employee handbooks standing alone without expressed agreement do not alter

  an at-will employment relationship. Here, the company had disclaimers that the

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  handbook was intended to provide only guidelines, it was subject to change, and it did not create any contract rights.

  In French, the plaintiff employee, an inventory stocking crew leader, was discharged after he signed an admission to knowingly eating a small amount of

  food and not paying for it.125 He alleged his admission was coerced by a pri-

  vate investigator. The company fired him. He filed suit claiming the company

  “breached an express contract of employment … an implied-at-law covenant of

  good faith and fair dealing,” and tortuously discharged him in violation of public policy. The trial court granted summary judgment for the company. He appealed.

  The Iowa Supreme Court, first, noted an exception to the employment at-will

  doctrine arises “when a contract created by an employer’s handbook or policy

  manual guarantees an employee that discharge will occur only for cause or under certain conditions.” But, it rejected the employee’s claim because the handbook contained language that was for “information only,” the company “reserves the

  right to change or terminate any or all of [policies, procedures] at any time,” and

  “Just as you retain the right to terminate your employment at any time, for any reason, [the company] retains a similar right.” Second, the Iowa Supreme Court

  stated the plaintiff “urges us to adopt a cause of action for breach of an implied covenant of good faith and fair dealing, a theory that we expressly rejected. In rejecting this theory, we joined the majority of jurisdictions that have considered it.” Third, the employee argued the coerced admission violated “Iowa’s policy

  against suborning perjury and the prohibition against making a false charge of

  dishonesty” and the policy that “every person is presumed innocent until proven guilty.” The court did not discuss the alleged coercion, instead it rejected his public policy argument on the grounds the case did not involve a criminal charge,

  perjury, or the presumed innocent doctrine. The Iowa Supreme Court affirmed

  judgment for the company.

  In Mead, the defendant company terminated an employee over an unspecified incident at a convenience store and the employee filed suit.126 She claimed, in part, breach of an implied contract of employment. The company responded that its

  employment application governed the case and she was an at-will employee. It filed a motion for summary judgment. The Superior Court of Connecticut denied the

  motion on the grounds there were material facts in dispute about the nature of the employment. Specifically, it stated the manager’s alleged remarks “about security, longevity, and promotion opportunities, which, factually, contradicts the at-will employment relationship.”

  In Theisen, discussed previously, a director of hospital security was subjected of making an obscene phone call that was left in the voice mailbox of a nurse.127

  After four employees identified the voice as the director’s, the hospital requested he submit an exemplar of his voice for voice pattern analysis. He refused based on an attorney’s advice that it violated the state polygraph statute. The hospital terminated his employment. The director filed suit, in part, alleging his discharge was in violation of public policy because it violated the state polygraph act that prohibited

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  employers from requesting or requiring an employee to submit to a polygraph

  examination. The court granted summary judgment to the defendant hospital. The

  director appealed. The Supreme Court of Iowa found the voice pattern analysis as requested was not to detect deception. Instead, the device was to be used as a means of identification, much as fingerprints and photographs. Because he was not going to be asked specific questions for determination of truth, his discharge did not violate the public policy of the state. The court affirmed judgment for the hospital.

  In Wholey, a long-term at-will store security manager filed a lawsuit for wrongful discharge in violation of public policy.128 After having given the security manager permission to install a camera in the office of the store manager who was subjected of theft, the security director told him to remove it before it was activated. Shortly thereafter, the store manager fired him. He filed suit and won damages of $166,000

  for wrongful discharge. The Court of Special Appeals of Maryland reversed. It held there was no clear legislative or judicial mandate that an employee investigate or report a co-employee’s criminal conduct, therefore, his discharge did not violate the public policy of the state.

  Similarly, in Morris, a long-term at-will employee claimed he was wrongfully terminated in violation of public policy.129 He argued the company failed to conduct a reasonable investigation and it falsely accused him of misappropriating

  funds. The Supreme Court of Connecticut affirmed he failed to state a recognized cause of action because a mere negligent false accusation did not violate a clear constitutional, statutory, or judicial public policy.

  In Koller, a nurse on separate occasions reported two doctors for abusing patients.130 She threatened to report the abuse to the state if the hospital did not address the issues. Over the next 18 months, she reported retaliatory abuse by the physicians. The hospital proposed to initiate a staff training program in response to her complaint. She quit. She filed suit for wrongful discharge under a constructive discharge argument (i.e., working conditions were so bad a reasonable person would feel compelled to quit). She argued her constructive discharge violated the

  “about to report” section of the state Whistleblowers’ Protection Act. The Court of Appeals of Michigan affirmed judgment in favor of the hospital on the grounds the plaintiff could not show with clear and convincing evidence she was protected under the statute given the long lapse of time, 18 months, between her first statement that she would report the abuse until the time she resigned.

  In Vaillancourt, an assistant store manager with a bipolar disorder was granted a leave of absence.131 Later, she returned to work on a reduced work schedule to accommodate her disability. Due to staffing shortages, she frequently worked over her scheduled hours. One day when working late, she was told by an associate that two customers had just shoplifted. She and a security officer followed the subjects outside the store and told a police officer who detained the subjects and recovered the items. She was terminated for violating the “Four Steps of Proof” policy of the company that required a manager to witness the theft. She filed suit for failure

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  to accommodate and wrongful discriminatory discharge. The trial court granted

  summary judgment for the store.

  The appeals court reversed. It found there was sufficient evidence to go to trial to determine if the store did offer reasonable accommodation in light of the fact that accommodation is an ongoing requirement (i.e., the question of whether her working longer than approved by her doctor was a triable issue). Reference the discriminatory discharge claim, the appeals court noted her manager reported she did not train the plaintiff on the policy un
til after the incident. There was testimony that the regional manager had been condescending and hostile to her accommodation needs. Further, the regional manager did not inform the management staff

  that reviewed the incident that plaintiff had not been trained prior to the incident.

  In addition, there was evidence the company had not fired other assistant managers who violated the policy. The Court of Appeals of California remanded the case to the trial court.

  In conclusion, although most employees are at-will and may be terminated at

  anytime for any, no, or poor reasons, fact finders still must be cognizant of wrongful discharge claims. When employees establish that their services are not at-will or they qualify under an exception to the employment at-will doctrine, wrongful discharge claims shift the burden to the employers to offer sufficient evidence to sustain the terminations.

  Tip: Under the employment at-will doctrine, employees may be fired at any time for any reason. However, there are exceptions to this rule that employers need to understand and to consider before discharging employees.

  7.10.3 Malicious Prosecution

  Before deciding to bring criminal charges against an employee, an employer should understand the civil tort action of malicious prosecution. It is a civil action designed to protect persons from being unjustly prosecuted. In order to prevail on a malicious prosecution claim, the plaintiff employee must prove the defendant employer or investigator initiated or continued a criminal proceeding without probable cause and for a malicious purpose, and the criminal proceeding terminated in favor of the accused employee.

  When analyzing these cases, the courts focus on the issues of initiation and

  continuation, probable cause, malice of the accuser, and decisions in favor of the accused. In addition to a not guilty verdict, possible verdicts in favor of the accused cover a wide range of actions, including a dropping of charges by the employer, a decision to not prosecute by the district attorney, and a dismissing of the charges on merit by a judicial officer. The existence of probable cause is often based on the good faith belief of the employer or investigator at the time or it may be based on

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  the beliefs of a reasonable person in the same situation at the time. If a grand jury indicts the employee on the same evidence and not evidence later acquired, this is a very strong but refutable presumption of probable cause. Malice is closely linked with but separate from the issue of probable cause. The absence of probable cause supports a conclusion of malice by an employer, but malice must be further proved by a showing of a reckless disregard for the facts to a specific ill will directed at the accused employee.

  The time when a criminal proceeding is actually initiated also varies by jurisdiction. Generally, the reporting of information to the police is not an initiation of a criminal proceeding if the police have the opportunity to conduct an independent investigation. However, the known inclusion of false information or the withholding of material information from the police may convert the reporting party’s action into an initiation. The signing of a criminal complaint by an employer and the insistence of having an employee arrested on the scene by a police officer are acts that increase the probability the courts will find the employers initiated the criminal proceeding. Finally, the continuation of a criminal proceeding refers to an employer’s ongoing duty after initiating a criminal proceeding to timely disclose to the authorities any subsequently discovered material information that favors an accused and diminishes existing probable cause. Failure to do so may be viewed as evidence of malice toward the accused.

  In Wright, a customer was stopped leaving a store with approximately $50 of merchandise for which she had paid only a $1.05.132 The customer signed a statement that the employee (plaintiff) who underrang the items had participated in

  prior misconduct. This later part of the statement was based on information the customer’s husband, who worked at the store, told her. The husband later denied making such a statement. The employee was interviewed for approximately one

  and a half hours. The police were called. A detective took a statement of the store loss prevention agent. Without any further involvement by the company or further investigation by the police, 10 days later the police arrested the plaintiff for shoplifting. He was acquitted and sued, in part, for malicious prosecution. The company filed a motion for summary judgment. The U.S. District Court held the

  company did not initiate the arrest of the plaintiff. The company played no more active role than reporting the offense. The police elected to engage in no further investigation and to initiate charges. Further, it found the company had probable cause to report the incident to the police based on the merchandise recovered versus the purchase price paid. The probable cause was strengthened by the allegation of the customer against the plaintiff. The court granted summary judgment on the

  issue of malicious prosecution in favor of the company.

  In Binns, the company appealed an award of $750,000 compensatory and $2

  million punitive damages for malicious prosecution and abuse of process.133 The company pressed criminal charges against the employee for theft of layaway payments. The evidence against the employee consisted of numerous cancellations of customers’ final payments by the employee and the lack of overage in her cash

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  drawer when she balanced the count. The company contacted the police. A detec-

  tive reviewed the files, copied some transactions, and obtained an arrest warrant for the employee. A year later, the prosecutor nolle prossed the case for lack of evidence. The plaintiff successfully sued for malicious prosecution and the company appealed. The Supreme Court of Arkansas focused its analysis on the testimony of the employee’s expert. He testified the company’s computer software in use at the time would not have shown an overage in the system when the last payment was

  canceled even if she did not remove the payment. He also thought the two man-

  agers who investigated the problem probably believed they had probable cause to believe she stole the funds, and they probably did not act with “ill will, spite, or a spirit of revenge.” The Supreme Court of Arkansas found the managers had “honest and strong suspicions” that the employee was taking funds from the register. It reversed the judgment against the company and it held the company was entitled to a directed verdict because the plaintiff failed to prove either the absence of probable cause or the existence of malice.

  In Sisney, a company vice president had a check issued to himself, told the cashier to record it as a cash advance, and because the president was absent, signed the president’s name followed by his name—“Ballou by Sisney.”134 The company

  contacted the police and reported the vice president was embezzling company funds because he did not have the authority to sign the president’s signature, nor had he ever done so in the past. The prosecutor refused to prosecute the case when he

  found out the vice president on four prior occasions had issued and signed similar checks, a fact the company withheld. The court held there was sufficient evidence to prove the company maliciously initiated criminal proceedings against the accused.

  When money turned up missing out of a cash register, a store manager filed

  an initial police report, followed by two company investigators, which named the plaintiff as the prime subject.135 Subsequently, the company investigators learned another employee had access to the missing money, she had access to other missing funds, and creditors were calling her at work. The company investigators never shared this information with the police. The police arrested the first employee.

  She was found not guilty and sued the company for malicious prosecution. The

  trial court granted summary judgment for the defendants. The Maryland Court of

  Appeals reversed. It ruled there was sufficient evidence for the plaintiff to pursue a malicious prosecution claim against
the company and remanded the case for trial.

  When reporting subject employee criminal activities to the authorities, employ-

  ers should make full and timely disclosure of all known facts and, subsequently, discovered facts material to the cases. Further, they should not hastily sign criminal complaints nor press the authorities (including officers on the scene) to make arrests in order to make examples of the employees. Employers should refrain from labeling employees as criminals; rather they should simply share known facts that the police may conduct independent investigations to determine if probable cause exists to arrest or obtain an arrest warrant. Before actually signing criminal complaints,

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  fact finders should reaffirm they have conducted good faith investigations and reasonably believe they have probable cause to support the complaints.

  7.10.4 Emotional Distress or Outrage

  Employees who are terminated or prosecuted by their employers may reasonably

  be expected to add claims for emotional distress/outrage. As previously discussed, these claims may be for the intentional or negligent infliction of emotional distress.

  In order to prevail on a claim of intentional infliction of emotional distress, a 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 a negligence case, plaintiffs also may have to prove physical impact, risk of imminent physical impact upon themselves, or physical manifestations of the distress. These claims in investigation cases are usually based on abusive investigative interviewing practices and the reckless disregard for the truth of the information obtained during the investigation.

  In Agis, as discussed earlier, a restaurant manager in response to employee theft terminated employees in alphabetical order in order to force the thief to confess.

  The Supreme Court of Massachusetts felt this action, even without physical injury, was sufficient to support a cause of action for intentional or reckless infliction of emotional distress. It reinstated the claims against defendant.