Thorough harassment investigation secures dismissal of age claim

Bennett v. Saint-Gobain Corp., decided last week by the 1st Circuit Court of Appeals, illustrates the importance of timely and thorough investigations into harassment complaints.

David Bennett was a 62-year-old, British (more on the importance of this fact below), in house patent lawyer for Saint-Gobain. In June 2001, 16 months prior to his termination, Bennett joined a group internal age discrimination grievance filed against the company's deputy general counsel, who was alleged to have said that he wanted to get rid of the older members of the law department's IP group. The company took the grievance seriously, conducted an investigation, and dismissed it as unfounded.
Beginning in the fall of 2001, and continuing through the fall of 2002, another Saint-Gobain employee, Diana Henchey, received four anonymous, sexually tinged poems at work, which she described as unwanted and discomforting. Based on the British spelling of certain words (meagre instead of meager, for example), and a few short encounters with Bennett, Henchey concluded that Bennett might be the amorous author, a fact which she reported to HR.
HR, in turn, asked the company's security department to conduct an investigation into the allegations. That investigation included the retention of an outside handwriting analyst, who determined that it was highly probable that Bennett had written the poems. A search of Bennett's office, to which he consented, revealed copies of other poems that he had written. Upon being advised of the expert's conclusion, the general counsel scheduled a meeting with Bennett for the next day. He did not include the deputy general counsel in the loop of what was happening. Bennett denied authoring the poems Henchey received, and claimed that the poems found in his office were written for his wife. When asked to spell meager, however, Bennett responded "m-e-a-g-r-e." The general counsel concluded that Bennett had written the poems received by Henchey and terminated him. Bennett then sued for age discrimination, among other claims.
The appellate court upheld the trial court's dismissal of the case. On the age claim, the court was persuaded by the company's prompt and extensive investigation into Henchey's harassment complaint. Specifically, the court found that Saint-Gobain had presented a legitimate non-discriminatory reason for the termination -- a belief that Bennett had authored the harassing poems, sent them to Henchey, and lied about them when confronted -- and that Bennett had not offered any evidence of pretext. In the court's words, "In the absence of some other proof that the decisionmaker harbored a discriminatory animus, it is not enough that his perception may have been incorrect. Rather, the plaintiff must show that the decisionmaker did not believe in the accuracy of the reason given." Thus, it was irrelevant whether Bennett actually composed or sent the poems, but only mattered whether the general counsel honestly believed that he did. That honest belief was based on the opinion of the handwriting consultant and the decidedly British spellings used in the poems.
There are valuable lessons to be learned from how Saint-Gobain handled Henchey's harassment complaint.

1. It responded promptly. It did not wait to address Henchey's feelings of discomfort. It acted quickly and decisively to investigate the complaint and make a decision as to what had happened and what corrective action to take.
2. It responded throughly. Harassment investigations almost always turn on credibility. Unless the harasser admits the misconduct (and how many times does that happen?), the company is going to have to make a judgment call based on the credibility of the complaining employee, the accused harasser, and any witnesses. Instead of relying solely on credibility, though, Saint-Gobain gathered some objective evidence to bolster its conclusion (the handwriting expert and the voluntary search of Bennett's office). The court still might have sided with Saint-Gobain in a typical "he said/she said" scenario, but was likely aided in its conclusion that the decisionmaker had an honest belief about the termination decision because of the reliance on the handwriting expert.
3. It responded appropriately. Once Saint-Gobain decided that Bennett had authored and sent the offending poems, and that he had lied about them, it took the most appropriate action it could -- it terminated his employment. It did not warn him and wait for the next complaint. It determined that a serious offense had occurred, which warranted a serious response.
4. It shielded those with potential bias. The general counsel smartly chose to exclude the deputy general counsel, whom Bennett had previously accused of age discrimination, from the investigation. Had the deputy been included in the investigation or decision making process, Bennett would have been able to claim that bias irreparably tainted the investigation, an argument that may have gotten Bennett's claim to a jury.

Many may think that the hiring of an outside expert to analyze Bennett's handwriting is overkill in an internal investigation. This case shows that internal investigations often become the central focus of subsequent litigation, and the more rock solid an investigation is, the easier a later lawsuit will be to defend.