October 17, 2019

A university class in how to foul up an internal investigation

Posted in Employment Law by Gene Killian |

Every so often, one of our clients asks us to review its employment manual and procedures. So, we go through the manual and procedures line-by-line to try to make sure they’re in accord with the ever-changing employment law landscape. This generally costs the client several thousand dollars. Yet, once in a while, I’ll receive a telephone call from the client months later, saying they’re having a problem with a particular employee. Can they fire the employee? What should they do? My first question always is, “Did you follow the procedures in your employment manual?” More often than not, the response is embarrassed silence.

In this way, employment law manuals are a lot like new diets. It’s enough to say you’re living the Keto life. Apparently, you don’t actually have to do it.

But not following your internal procedures can lead to disaster, as the learned people at Hofstra University recently found out the hard way.

Jeffrey Menaker was a tennis coach at the college. Michal Kaplan, a member of the women’s varsity team, told Menaker that his predecessor had promised to increase her scholarship from 45% to full. Menaker said he had no record of that agreement, and couldn’t increase Kaplan’s scholarship for her coming (sophomore) year, but could do so for her junior and senior years. This apparently enraged Kaplan’s father, who accused Menaker of reneging on a commitment made by Hofstra.

A few months later, Hofstra received a letter addressed to the University President and the University's Title IX coordinator. The letter, sent by Kaplan’s lawyer, claimed that Menaker had subjected Kaplan to “unwanted and unwarranted sexual harassment” and “quid pro quo threats that were severe, present pervasive, hostile, and disgusting.”

Menaker was summoned to a meeting with the University’s General Counsel, Mone, and its Vice- President and Director of Athletics, Hathaway. At the meeting, Mone handed him the Kaplan letter. Menaker reviewed it and denied all of the accusations. Mone then asked Menaker to collect copies of all communications with Kaplan, and told him that Hofstra would be conducting a complete investigation, and that a report would be shared with him.

At the time, Hofstra had a written harassment policy, which provided for an “informal” process for arriving at a “mutually agreeable” resolution.  Hofstra also had “formal” procedures, which (A) required Hofstra’s investigator to interview potential witnesses, (B) allowed the accused person to submit a written response, and (C) provided for a written determination as to reasonable cause.

Trying to cooperate, Menaker provided Hofstra with copies of all of his electronic communications with Kaplan, and identified the names of witnesses who might provide information that could be useful to the investigation.

Unfortunately, the University apparently ignored all of this information. The Human Resources Director then fired Menaker for “unprofessional conduct.”

This made Menaker unhappy enough to visit his friendly neighborhood plaintiff’s lawyer, and, boom, the University became a defendant in a Title VII lawsuit, alleging sex-based discrimination. The gist of Menaker’s argument is that the University ignored procedural protections that would have been provided to him if he were not male. The University moved to dismiss the claim. But the Second Circuit carefully reviewed the procedural irregularities engaged in by Hofstra’s investigators (including the failure to review relevant evidence or provide a proper reasonable cause determination) and wrote: “Once a university has promised procedural protections to employees, the disregard or abuse of those procedures may raise an inference of bias.”  Motion to dismiss denied.

You can read the Second Circuit decision by clicking here.

Especially in today’s #MeToo climate, there may be a temptation to rush to judgment when a member of a protected class makes certain arguments. Be careful. Making unwarranted assumptions might be perfectly appropriate on Twitter. But it doesn’t work too well in a court of law. If you have internal procedures for the investigation and resolution of disputes, follow them to the letter, listen carefully, and treat both sides with respect. Not listening objectively and carefully is often what leads to expensive litigation…which is exactly what employment manuals are supposedly designed to avoid.

And ask your broker about whether you have adequate employment practices liability insurance.