When facing discipline or discharge for sexual harassment, it is not unusual for the accused employee to in turn, allege that the harassment complaint is being used by the employer as a pretext to get rid of the accused employee for some other discriminatory reason.  In an unpublished decision released last month, the Fourth Circuit Court of Appeals (which includes North and South Carolina) discussed the employer’s obligation to investigate the accused employee’s claims of bias and unfairness.

In Cupples v. AmSan, Inc., the plaintiff was a long-term employee who was the subject of a complaint of harassment by a female co-worker who alleged one inappropriate touching.  During the course of its investigation, the employer obtained statements from several other female employees who had not complained, but when interviewed revealed similar conduct directed toward them by the plaintiff.  Also, on two occasions the plaintiff ignored the employer’s instructions not to discuss the ongoing investigation with other employees.

After being terminated for violation of the employer’s harassment policy, the plaintiff sued, alleging age discrimination.  In support of his position that the termination for harassment was a pretext for age discrimination, the plaintiff argued (1) that no other employee had been terminated for a single violation of the harassment policy; and (2) that the employer’s investigation of the harassment was faulty because it was overly aggressive and did not adequately review his contentions that he was being set up for termination.

The Fourth Circuit rejected these arguments, affirming summary judgment for the employer.  In finding for the defendant, the court noted that the investigation revealed multiple violations of the harassment policy by the plaintiff.  In terms of the adequacy of the investigation, the Fourth Circuit stated that it “does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination.”  In the absence of evidence that the employer’s decision was motivated by age bias, the fairness of the employer’s decision is not an issue, as long as it was the actual reason for the termination decision.

This case should support aggressive action by employers that discover violation of their harassment policies.  Courts will not second guess the adequacy of the investigation as long as the employer’s motivation for the disciplinary action taken is clear.