HR Manager Not Protected for Actions during Internal Investigation

by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is Townsend v. Benjamin Enterprises Incorporated (BEI) decided by the 2^nd Circuit on May 9, 2012 [2012 U.S. App. LEXIS 9441]. The main actors in this case are Michelle Benjamin, BEI president, Hugh Benjamin, BEI vice president and Michelle Benjamin’s husband, Martha Townsend, a receptionist/office manager who charged Hugh Benjamin with sexual harassment, and Karlean Grey-Allen, an HR manager who investigated Townsend’s claim. The facts are that Townsend complained to Grey-Allen, who asked Townsend to provide a written and oral account of the events in question. Grey-Allen then spoke with the New York State Division of Human Rights, which suggested that she separate the two principals. Grey-Allen then interviewed Hugh Benjamin and asked him to work from home, and consulted with Dennis Barnett, a BEI consultant she viewed as a mentor and felt she could share confidential information with. Michelle Benjamin then fired Grey-Allen for breach of confidentiality. Hugh Benjamin was then returned to work, and Michelle Benjamin hired another BEI consultant who investigated the complaint and opined “nothing happened” between the two principals, it being a matter of “he said versus she said.”

Though interesting in its own right, the lesser of the two outcomes for present purposes is that a jury found for Townsend and awarded $30,400 in damages and $141,308.80 in attorneys' fees and costs. Also, Hugh Townsend was deemed an “alter ego” of the company, making BEI strictly liable for his actions (or that BEI was not entitled to the affirmative Ellerth/Faragher defense that BEI had a harassment policy that Townsend unreasonably failed to use). These rulings were affirmed by the 2nd Circuit.

More importantly for present purposes is that the district court judge granted summary judgment on Grey-Allen’s retaliation claim, which the 2nd Circuit also affirmed. Agreeing with other circuit courts in similar cases, the 2nd Circuit unanimously agreed that Grey-Allen had “not participated in any manner in an investigation, proceeding, or hearing under Title VII”, the logic being it was an “employer's internal, in-house investigation, conducted apart from a formal charge with the EEOC.” However, one of the three judges (Judge Lohier) “reluctantly” concurred with the ruling. Judge Lohier agreed that the Title VII language on retaliation for participation was ambiguous, but he also opined “Congress should act to clarify Title VII if it desires to prohibit private employers from retaliating against employees merely because they participate in internal investigations of discrimination complaints prior to any involvement by the EEOC.”

Frankly, I’m confused here with the EEOC connection. In Crawford v. Metropolitan Government of Nashville (2009), Crawford was terminated for embezzlement after she testified in an internal investigation in a claim of sexual harassment by a fellow employee, and the Supreme Court unanimously ruled that she was retaliated against for participating in an internal investigation. Her participation was also prior to any EEOC investigation. Granted, Crawford was an employee, not an HR manager. However, it seems strange to me that a similar ruling wouldn’t be applied in the present case. A company can always come with a reason for terminating an HR manager if it is displeased with how the investigation is conducted. Am I missing something here?