Uncooperative Employees are not Protected from Discipline

First Quarter 2013Articles California Update

In a favorable decision for employers, a Court of Appeal determined that an employee can be terminated for being misleading and uncooperative during an employer’s internal investigation of discrimination claims. In McGrory v. Applied Signal Technology, Inc.(2013) 212 Cal.App.4th 1510, after a female employee complained that her supervisor was discriminating against her based on her gender and sexual orientation, the employer initiated an investigation led by an outside female attorney. The investigation revealed that the supervisor did not discriminate against the female subordinate based on gender or sexual orientation, but he had violated the employer’s policies by telling jokes and making remarks based on race or sex. The investigator also concluded that the supervisor was uncooperative and appeared to have intentionally misrepresented some facts during the course of the investigation. Based on the investigator’s findings, the supervisor’s employment was terminated. The supervisor then sued for wrongful termination in violation of public policy, claiming his termination was the result of bias against men and in retaliation for his participation in the internal investigation. He further alleged he was defamed when the employer’s vice-president of human resources told another employee the reasons for his termination. Ultimately, the appellate court affirmed the trial court’s order granting summary judgment in favor of the employer. This decision provides useful guidance for employers:

  • Being uncooperative or deceptive during an employer’s internal investigation is not protected activity. In fact, “such conduct is a legitimate reason to terminate an at-will employee.”
  • “No inference of discrimination can reasonably be drawn from the mere lack of conclusive evidence of misconduct.” An employee must present actual evidence that the employer’s motivation was illegal, not just unreasonable.
  • Statements by management and coworkers to other coworkers explaining why an employee was disciplined are conditionally privileged. Such statements can be considered defamatory only if they were made with “malice” -- i.e., that the employer made a statement in reckless disregard of the employee’s rights and that the employer either did not reasonably believe them to be true.

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