Basic Principles in Workplace Investigations, As Always

Mark Flynn, Specialized Legal Services

The blogosphere and employment law publications have taken special note of an age discrimination case out of Connecticut. Castelluccio v. International Business Machines (Conn. 2014). Well before the $2.5 million verdict in favor of Castelluccio, publicity focused on the judge’s decision to exclude IBM’s workplace investigation from evidence based on the determination that it was one-sided. The case reinforces the importance of following basic principles to support an appropriate investigation, but seems also to have prompted some professional investigators to oversell their assertions of neutrality.

Castelluccio’s age discrimination complaint on June 13, 2008, followed notice of his pending termination after over 40 years of employment at IBM. IBM’s HR consultant conducted an “open door” investigation in response and on August 11, 2009, informed Castelluccio of his finding: IBM had treated Castelluccio fairly when it terminated him. The judge declared it “not an investigation conducted by a neutral party” because it “represents only the findings
and conclusions of IBM, as opposed to Castelluccio’s account of the circumstances surrounding his termination.” It focused more on Castelluccio’s job performance than his age discrimination claim. The judge viewed the investigation as an attempt to exonerate IBM rather than determine if Castelluccio was treated fairly. The investigator’s admission that the investigation would have ceased if Castelluccio had signed the severance agreement, suggested that following IBM’s EEO policy was secondary to avoiding litigation.

Several web-based snippets on the ruling imply that the lack of neutrality in the investigation might only be overcome by hiring a third-party investigator. While hiring an outside investigator may be the best choice in some circumstances, it is false and impractical to suggest that HR professionals cannot be neutral in internal investigations. As always, the
issue goes back to the tenets of a sound investigation, regardless of who assumes that role. Neutrality or impartiality is best demonstrated by sound and consistent process, rather than even the most sincere self-declarations.

It is unclear what an “open door” investigation meant in this case, but the facts suggest that the investigator did not allow Castelluccio to tell his side of the story in full and only considered information from executives critical of his work performance. The scope of the investigation was not properly framed around the allegation of age discrimination, but on an ambiguous standard of fair treatment. Likewise, the 14-month lag between the complaint and communication of findings misses the mark for a prompt investigation. These deficiencies do not correlate to internal HR professionals more so than third-party investigators.

To learn more about MSEC’s investigation services, click here or call 800.884.1328.