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182 Ed. Law Rep. 21

West’s Education Law Reporter

December 18, 2003

Education Law Into Practice

Oren R. Griffin, Esq.aa

Copyright 2003 by West Group – No Claim to Original U.S. Government Works

INVESTIGATING EMPLOYEE MISCONDUCT AND TAKING

APPROPRIATE REMEDIAL ACTION: THE FUNDAMENTALS a

INTRODUCTION

In recent years, reports of workplace misconduct and even violence have been on the rise. As a result, private and public
sector employers are under increasing pressure to monitor employees and effectively respond to employee misconduct, which
negatively impacts the workplace. Human resources managers at public schools and educational institutions face the same
challenges and must be prepared to investigate employee misconduct.1 Students, parents, teachers, and the community at–
large have an interest in making sure that the conduct of school personnel does not disrupt the learning environment. Whether
the alleged misconduct is restricted to employees or involves students, harassment in schools pose significant threat of
liability.2 To that end, this paper examines the fundamentals for investigating misconduct by school employees in the
workplace.

SELECTIVE CASE LAW REVIEW

The U. S. Supreme Court has rendered several opinions, which provide the legal context within which school administrators
must operate. Investigations, which intrude upon an employee’s reasonable privacy expectation, or deny a school employee
his or her right to due process, may be unlawful. Therefore, it is important that school human resources administrators have a
fundamental understanding of the legal standards that govern investigations of employee misconduct.

The United States Supreme Court has long held that public employers have an interest in investigating misconduct by
employees in a manner that *22 does not impose significant administrative burdens or intolerable delays. In O’Connor v.
Ortega,3 a doctor, employed at a state hospital in charge of the hospital’s psychiatric residency program, was placed on
administrative leave for alleged incidents of employee misconduct and his office searched as part of an investigation. The
doctor’s employment was terminated following the investigation. At issue was whether the doctor’s constitutional rights
under the Fourth Amendment were violated when hospital officials searched his office.

The Supreme Court held that while a public employee (the doctor) had a reasonable expectation of privacy in his office, an
employer’s warrantless search of the doctor’s office was permissible. The Court’s plurality opinion stated that:
Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner,
and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or
other work–related misfeasance of its employees ... Balanced against the substantial government interests in the
efficient and proper operation of the workplace are the privacy interests of government employees in their
place of work which, while not insubstantial, are far less than those found at home or in some other contexts ...

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We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of
government employees for noninvestigatory, work–related purposes, as well as for investigations of work–
related misconduct, should be judged by the standard of reasonableness under all the circumstances.4

The Court’s holding in O’Connor embraced the reasoning that schools have a legitimate need to maintain an environment
that is conducive for learning, as was set forth in New Jersey v. T.L.O.5 In T.L.O., a female high school student was seen
smoking in the school’s restroom and thereafter was taken to the assistant principal’s office, where she denied that she had
violated the school’s no smoking rule. The assistant principal then searched the student’s purse and discovered marijuana and
drug paraphernalia. Charges were brought against the student in a juvenile court proceeding wherein she moved to suppress
the evidence from her purse on the basis that the search violated her Fourth Amendment rights.

The Court refused to suppress the evidence, finding that the search did not violate the Fourth Amendment. Declining to
require that school officials adhere to the probable cause standard and warrant requirements used in criminal investigations,
the Court held that searches by educational personnel needed only to be reasonable under the circumstances. Applying this
standard to the public employment context, the Court in O’Connor observed that “[i]n searches conducted by a public
employer, we must balance the invasion *23 of the employees‘ legitimate expectations of privacy against the government’s
need for supervision, control, and the efficient operation of the workplace.”6

Once an investigation has revealed that a public employee has violated a school policy, disciplinary action which results in
dismissal/suspension without pay or termination should not be taken without considering the employee’s due process rights.
Under Loudermill v. Cleveland Board of Education,7 a public employee is entitled to (1) oral or written notice of the charges
against him; (2) an explanation of the employer’s evidence; and (3) an opportunity to present her side of the story. These
provisions should not be ignored prior to taking disciplinary action against a public employee that may deprive him/her of a
contract or other property right.

THE INVESTIGATION PROCESS

Misconduct in the workplace can take various forms.8 For school administrators, receiving a complaint is not a pleasant
experience. Once a report of employee misconduct has been made, it is important that the report be taken seriously and that
those involved in the investigation reserve judgment and maintain a high level of professionalism. In addition, the following
concerns should not be overlooked.

Do not dismiss the gravity of the complaint or alleged misconduct. Anytime an employee’s conduct interferes with the
school’s educational mission, the employee must be informed and the conduct properly modified. This does not mean that
each alleged act of misconduct will result in disciplinary action, but employee misconduct must be investigated and taken
seriously. School administrators at every level make a mistake when they dismiss employee misconduct as aberrant behavior
without carefully reviewing the circumstances which produced the misconduct. As noted by the U.S. Supreme Court in
O’Connor, governmental agencies such as public schools inevitably suffer from the inefficiency, incompetence,
mismanagement, and other work–related misfeasance of their employees.9 Thus, it is reasonable to assume that school
employees will be subject to disciplinary action from time to time. Employee misconduct which is not challenged can have a
negative effect on other school employees and students. Where the misconduct violates school policy or practice, the
employee should be given formal notification that such misconduct will not be tolerated and may lead to disciplinary action.

Carefully select who will conduct the investigation. The investigator should be well–trained, sensitive, and analytical. The
investigator should also be very familiar with the school’s employee handbook and related policies and procedures. The
investigator should also be professional and capable of providing honest, truthful testimony in the event the investigation
leads to legal action. The investigator must understand that every employee misconduct investigation will have its own
unique twists and turns, which may require an investigator to improvise and re–direct his or her efforts based on the facts
presented.

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*24 At no time will the investigator’s skills be more critical than during interviews with the accused employee and witnesses.
These persons will probably be tense, nervous, and possibly defensive. The investigator should recognize these reactions, be
able to put all parties at ease, and elicit factual information pertinent to the investigation. This may be done by assuring the
person that any information provided will be kept confidential and disclosed on a “need–to–know–basis.”10

Effective investigations demand details and specific fact–finding. Employee misconduct cannot be substantiated by
guesswork. Persons who may have witnessed or observed the misconduct should be asked to provide a signed written
statement describing the employee’s misconduct in detail. These observations should focus on facts, not judgment calls or
mere speculation. Basic questions that concentrate on the who, what, when, and where are very important. The investigator
must attempt to gather this information as quickly as possible because memories can, and often do, deteriorate and may
become less reliable over time. More importantly, the school should attempt to demonstrate that a misconduct complaint
prompted a good–faith, thorough investigation immediately.11

Clarify the employee misconduct, school policy violation, and be prepared to take prompt and appropriate action. The
investigation should separate a “mere misunderstanding” among co–workers from an employee’s conduct that requires
disciplinary action. Also, the investigation should point out when an immediate response is required for the benefit of the
entire school. For example, an employee accused of using school property for personal use (e.g., using school computers for
day trading) may simply be asked to refrain from using the computers at all until the investigation is completed. On the other
hand, an employee who is accused of fighting with a co–worker maybe suspended with pay pending the outcome of the
investigation. Different employee misconduct allegations often require different responses.

At all times, remain organized throughout the investigation. Take careful and systematic notes during each phase of the
investigation to ensure that the *25 information gathered is accurate and reliable. The investigator should not focus on
generating a voluminous amount of documents, but gathering pertinent, creditable information. All documents produced
during the course of an investigation may be subject to discovery in subsequent litigation. Therefore, notes ought not include
defamatory comments or legal conclusions. To determine the most appropriate way to handle documents produced during an
investigation, the investigator should consult with the school’s attorney prior to an investigation.

Interviewing the accused employee. It is critical to begin by explaining to the accused employee the purpose of the
investigation. The employee should be told that before any conclusions are reached, a full, thorough investigation will be
conducted and that he or she will be given an opportunity to give his or her version of the events. Specifically, describe the
misconduct that is alleged, but make no accusation whatsoever. The investigator’s posture should reflect the impartial,
disinterested participant.

The accused should be invited to submit a written statement which should include contact information, current date, a
detailed rendition of the events at issue, witnesses’ names, and names of other persons who may have important information.
Once the statement is drafted, the investigator should review the statement with the accused and have it signed. During this
process, the investigator should note the reaction of the accused to the charges: surprise, anger, or disbelief. Nonverbal
responses, while not conclusive, may provide helpful insight.

The investigator should prepare a series of questions designed to gather factual information from the accused. The questions
can take a chronological approach that tracks the conduct of the accused relative to the period of time before, during, and
after the alleged act of misconduct. Alternatively, the questions can be focused on “key events” that may pinpoint the alleged
misconduct. Regardless of the approach taken or questions prepared in advance, the investigator should not be tied to any
particular approach. It is almost impossible to predict what an employee accused of wrongdoing might say; thus, it is
important to remain flexible during the interview. For instance, an admission might obviate the need for further questions.
Likewise, a hostile employee might require the investigator to dispel certain fears perceived by the employee before any
substantive questions can be presented.

Finally, the investigator’s interview with the accused employee should end by explaining that the investigation is on–going,
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and that the results will be shared with him or her. The accused employee should be asked to treat the matter as confidential,
and told that should the need arise, that the investigator may speak with him or her again to clarify certain issues.

Interviewing the complainant. In the event that the alleged misconduct surfaces from a complaint raised by another person, it
is vital that this complainant be interviewed. Assuming the complainant is another employee, he or she should be reassured
that no negative employment action or retaliation will result from filing a complaint. Retaliation claims are common
problems in the workplace, and the complainant should be specifically advised that the employer will take proactive steps to
prevent such misconduct. As with the accused, the complainant should be asked to provide a *26 written statement which
provides specific details regarding the alleged misconduct. Likewise, the complainant should be thoroughly questioned
regarding his or her observations. The investigator should have the complainant describe the misconduct, the context in
which it occurred, specific location, time and date of the events, names or description of other witnesses, and any comments
specifically uttered.12 The complainant should also note what adverse effect(s) the misconduct has had on him/her
(nightmares, anxiety, insomnia, poor job performance, etc). The complainant should be asked if he or she has any documents,
notes, e–mail messages, pictures, etc. related to the misconduct. Finally, the investigator should ask the complainant how he
or she wants the situation resolved.

Interviewing witnesses to the alleged misconduct. Every person who purports to be a witness to the alleged misconduct
should be interviewed without regard for whether he or she supports or denies the allegations. Witnesses should be reassured
that they will not suffer retaliation for coming forward. The interviewer should ask open–ended, nonleading questions
without disclosing information that might mislead the witness. For example, “Have you ever witnessed any interaction
between John and Mary?” Remember to concentrate on specifics, and ask the witness to provide a written statement.

Resolution and follow–up. Once interviews are completed, the relevant facts disclosed, and a determination reached
regarding whether school policy has been violated, the matter must be resolved. In situations where the misconduct is overt,
blatant and requires disciplinary action, the critical concern is severity and consistency. The disciplinary action imposed
should adequately fit the violation. Severe misconduct may require termination, while minor infractions may call only for
written warnings.13 In all cases, disciplinary action should be meted out fairly and consistently, without regard to race, sex,
disability, national origin or other protected classifications.

The results of the investigation should be communicated directly to the accused employee and the complainant in separate
meetings. Assuming the accused employee is not terminated, it may be appropriate to enter a coaching agreement with the
employee. (See Attachment A). This document should identify that the employee’s conduct was the subject of a fact–finding
investigation, the results of the investigation, the pertinent school policies at issue, and the employee’s affirmation to improve
his or her conduct.

As for the complainant or victim of the misconduct, the school employer should include his or her participation in a
resolution conference. (See Attachment B). This document should resolve that an investigation was conducted to address
specific misconduct, what action was taken as a result *27 of the investigation, and that the employee is in agreement that the
matter has been resolved. The investigation should end with follow–up inquiries which may take place at pre–determined
intervals (i.e., 30 days, 2 months, etc.). Nevertheless, the employees should be encouraged to come forward with subsequent
concerns at any time.

ANCILLARY CONSIDERATIONS

Tape–recording witness interviews. Good investigators will take copious notes during interviews, but even the most
thorough investigator can forget certain details during the course of interviewing several persons. Therefore, investigators
should consider tape–recording interviews and using the tapes to supplement his or her handwritten notes. Witnesses should
be informed when an interview is being recorded, and if the witness objects, the tape–recorder should not be used. It is better
not to use a tape–recorder, rather than cause the witness anxiety that might discourage him or her to speak freely during the
interview.

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Using an attorney to assist in the investigation. Prior to an investigation, school officials should consider visiting with their
attorney, especially where there is an indication that a lawsuit is being contemplated by any particular party. The attorney
may want to conduct certain interviews or have the accused, the complainant, or a witness sign an affidavit or declaration that
specifies his or her recollection.

INTERACTIVE DISCUSSION SCENARIOS

1. The Classroom Distraction: Mr. Mann is a high school science teacher at Booker T. Washington High
School and an active member of the Men Loving Children (“MLC”) Association. The MLC Association is
dedicated to promoting gay rights and relationships between men and teenage boys. Mr. Mann has written
numerous articles on the topic, including a series of recent articles that advocate reducing the age of consent
and calling for the release of several Catholic priests from prison who have been convicted of sexually
molesting under–age boys. Parents and students have demanded that Mr. Mann be removed from his teaching
position, and are threatening to protest and boycott the school if their demands are not met. The superintendent
has asked you to investigate the matter. What do you do?14

School Response: While Mr. Mann’s First Amendment right to free speech and association are not forfeited by virtue of his
employment as a school teacher, the school has a obligation to ensure that students and other school personnel are free to
participate in the educational operation without being subject to unlawful conduct. Mr. Mann’s conduct should be carefully
examined to determine what impact his activities are having at the school. The investigation should begin with an interview
of Mr. Mann explaining that the school has received certain complaints about his conduct. He should be *28 reminded of the
school’s policies prohibiting harassment and discrimination, especially those policies that related to improper relationships
between students and school employees. Disciplinary action, including discharge, may be taken against Mr. Mann if the
investigation determines that Mr. Mann has pursued inappropriate relationships with students at the school. If the
investigation is inconclusive, Mr. Mann should be advised that he is obligated to comply with all school policies and failure
to do so will affect the school’s ability to retain his employment.

2. Conflict from Culture and Customs: Mr. Abdul is hired at your school as a hall monitor. He is a practicing
Muslim and during the early weeks of his employment he reports to work on time, appears to do his job without
fault, and interacts well with the students. Shortly thereafter, numerous reports are brought forward by female
teachers who have claimed that they are very offended by Mr. Abdul’s unwillingness to shake their hand when
greeting female teachers or staff members. One female teacher even writes a strong letter to Mr. Abdul
explaining that hand–shaking is an “American” custom that he should embrace, and that his failure to do so
might cause some to think that he is “anti–American” or “pro–terrorist.” Mr. Abdul brings you the letter and
explains what he has been told. What do you do?15.

School Response: Initially, Mr. Abdul should be told that he has done the right thing by reporting these incidents to the
school. He should be given a copy of the school’s employment policies, which should indicate that harassment based on
religion or national origin is prohibited. Mr. Abdul should also be told that the school will conduct an investigation and he
will be advised on the results. All school employees allegedly involved in this matter should receive a copy of the school’s
anti–harassment and discrimination policies. School employees should also be told that threats (verbal or written) may
constitute forms of harassment and are prohibited. In particular, the employee who wrote the letter to Mr. Abdul suggesting
that he might be pro–terrorist should be interviewed and subject to disciplinary action. The letter written to Mr. Abdul should
be confiscated and filed with any other evidence generated as a result of the investigation. Furthermore, the school should
consider sensitivity training for school employees regarding cultural differences that may exist in the workplace. Finally, Mr.

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Abdul should be advised on actions taken by the school and asked to sign a resolution agreement.

3. The Misunderstanding or Religious Retaliation: Mr. Pastor, a teacher at your school, also serves as a
minister at a local church. A few days before the Easter Holiday, Mr. Pastor is having lunch with his colleagues
in the teacher’s lounge when he is asked about his plans for the Easter *29 Holiday. Mr. Pastor explains that he
is a minister and invites the teachers in the lounge to his church for Easter Sunday Services. He also shows
them a flyer he has that gives directions to the church. Several teachers from the school actually attend the
church for Easter services, including Mr. Jones. Mr. Jones subsequently attends the church for several Sundays
and also makes financial contributions and donations to the church, but Mr. Jones does not become a member
of the church. About a month later, Mr. Jones stops attending Mr. Pastor’s church for no particular reason. Over
the next few weeks, Mr. Jones avoids Mr. Pastor because he does not want to be questioned about not attending
the church. Thereafter, at a pep rally for the school’s baseball team a fight breaks out between two students that
Mr. Pastor has to stop alone. Apparently, Mr. Jones was supposed to be on duty during the pep rally. Mr. Pastor
reports Mr. Jones to the principal and superintendent claiming that Mr. Jones was derelict in his duties, and that
the entire fight could have been avoided if Mr. Jones had been on duty at the pep rally. Mr. Jones claims that he
was dealing with another student dispute outside the gym where the pep rally was held and that he was not
neglecting his duties. Moreover, Mr. Jones claims that fights are not unusual at the school and the real reason
for Mr. Pastor’s complaint is because Mr. Jones stopped attending his church. You have been asked to
investigate the matter. How do you proceed?

School Response: The focus of this investigation should be whether or not there is an issue of neglect of duty. The
investigation should begin by interviewing Mr. Jones and Mr. Pastor to determine their activities on the day of the fight. Each
should give a detailed account of their scheduled and actual activities which should be verified by the proper school officials.
Also, other teachers on duty who may have witnessed Mr. Jones or Mr. Pastor should also be interviewed. With respect to
Mr. Pastor’s activities, he should be asked whether he has indeed solicited co–workers to attend his church. Based on the
facts presented this incident appears to be a minor misunderstanding but all parties should be advised that performing their
jobs at the school is the number one priority. Otherwise, the school may want to engage in a coaching session with Mr. Jones
and Mr. Pastor to develop new strategies to deal with multiple student disruptions.

4. No such thing as a private high. Pam Smith is a guidance counselor at Real Smokey High School. She is
required to report to her office at 8:00 a.m., and each morning usually arrives at the school parking lot between
7:30 a.m. and 7:45 a.m. where she sits in her car, drinks her coffee, and listens to a few minutes of the news on
the radio before walking into the school building. Although no one knows, Pam also often smokes marijuana in
her car before entering the school building. Last Thursday was parent–teacher conference day for 9th and 10th
grade students and Mrs. Joy Johnson had a 7:50 a.m. appointment with her son’s math teacher. Mrs. Johnson
parked in the school parking lot and was proceeding to the school’s main building when she detected the scent
of marijuana. As Mrs. Johnson walked across the parking lot she passed by a blue car where the marijuana
smell was the strongest and she determined that was the source of the scent. After she passed the blue car she
turned around briefly, noticed one female in the car, and glanced at the license plate. When she got inside the
building, she jotted the license plate *30 number down on a slip of paper. Following the meeting with her son’s
math teacher, Mrs. Johnson reported the parking lot incident to the principal and gave her the license plate
number. The license plate number does not match any school employee’s car exactly, but matches Pam Smith’s
license plate, except for the last digit. All employees are aware of the school’s zero tolerance drug policy, and
the parking lot does constitute school property. The principal has asked you to investigate. What do you do?

School Response: Gathering accurate information is a vital to the success of any investigation. The facts presented in this
scenario suggest that Pam Smith may have violated the school’s anti–drug policy but the investigator should begin by

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interviewing Mrs. Johnson to make sure that the information she has provided is valid. It might be worthwhile to visit the
parking lot with Mrs. Johnson to determine where she detected the scent of marijuana. Also, the make and model of the blue
car Mrs. Johnson saw should be determined or the investigator might show her a picture of several blue cars (including Ms.
Smith’s blue car) to determine whether Mrs. Johnson can identity Ms. Smith’s car. Ms. Smith should be interviewed and
advised that the school does have a zero tolerance drug policy that applies to employees, and that the school has received a
report that she may have violated the policy. She should be given the information discovered in the investigation and asked
about her activities on the morning in question. If appropriate, law enforcement authorities should be advised that an incident
regarding illegal drugs has been reported at the school and is currently under investigation. If Ms. Smith denies any drug use,
the school may not have adequate grounds to terminate her employment. However, a note can be placed in her personnel file
confirming the parent’s report and that Ms. Smith has been advised of the school’s anti–drug policy. In the event the
investigation reveals that Ms. Smith did violate the school’s anti–drug policy, her employment should be terminated
consistent with the school’s zero tolerance drug policy.

CONCLUSION

Investigating employee misconduct is challenging. Each investigation will hinge on the unique circumstances surrounding
the alleged misconduct. Those charged with investigating employee misconduct should expeditiously gather facts, thoroughly
interview witnesses, and seek resolution when possible. Furthermore, human resources personnel should consult legal
counsel if a lawsuit is anticipated to follow the investigation. By operating within these fundamental parameters, schools will
improve their ability to remedy employee misconduct and defend potential lawsuits.

ATTACHMENT A

COACHING SESSION AGREEMENT

Session held with NAME, JOB TITLE, SCHOOL, DATE

• “School Name” has conducted a fact–finding investigation related to an allegation of employee misconduct wherein
“Employee Name” is specifically implicated. This is a coaching session intended to provide “Employee Name” with
specific information that will allow him/her to perform his/her job duties successfully and to avoid any future
misunderstandings that might interfere with his/her job performance at “School Name.”
*31 • “School Name” has confirmed that on or about “Date of Misconduct, Location, and Type of Allegation”. The
investigation confirms that “State in one sentence what the investigation discovered.” Also, “state that circuMstances
that led to the misconduct.” this dispute was reported to “School Administrator.”
• The investigation confirmed that during “Here explain how the conduct violates School policy.”
• In order to avoid incidents of this nature in the future, “Employee Name” is reminded that:

1. STATE SCHOOL POLICY PROHIBITING CONDUCT.

2. STATE SCHOOL PRACTICE PROHIBITING CONDUCT.

• “School Name” has determined that “Employee Name” did not intend to violate any “School Name” policy.
• “Employee Name” agrees to meet with “School Administrator” on date, as a follow–up to this coaching session.
_______________ _______________
“Employee Name” Date “Principal Name” Date
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“School Name”

ATTACHMENT B

RESOLUTION CONFERENCE

Conference held with SCHOOL EMPLOYEE, POSITION, NAME OF SCHOOL, DATE

• “School Name” received information regarding an alleged act of misconduct and a fact–finding investigation was
commenced to determine the validity of the alleged employee misconduct.
• The investigation has confirmed that “School Employee” did “Describe Infraction.” While not in direct violation of
school policy, “School Name” does discourage any conduct which might be viewed as offensive in the “School Name”
environment.

or

• The fact–finding investigation did/or did not substantiate a school policy violation. The “School Name” will continue to
monitor the situation and requests “Employee Name” cooperation.
• Any allegations that “Explain why the alleged misconduct has or has not been substantiated.”
• “School Name” has taken action to resolve the alleged misconduct in a manner intended to prevent future misconduct at
“School Name.”
• “School Employee” has read and understood this statement, and is satisfied that all concerns related to alleged infraction
are resolved.
• “School Employee” agrees to meet with “School Administrator” on “date”, as a follow–up to this conference.
_______________ _______________
“Employee Name” Date “Principal Name” Date
“School Name”

Footnotes

a
Education Law Into Practice is a special section of the EDUCATION LAW REPORTER sponsored by the Education
Law Association. The views expressed are those of the author and do not necessarily reflect the views of the publisher
or the Education Law Association. Cite as 182 Ed.Law Rep. [21] (Dec. 18, 2003).

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aa
The author is an attorney with Elarbee, Thompson, Sapp and Wilson, LLP., Atlanta, GA.

1
Richard E. Bump and et al., Investigating Alleged Wrongdoing by Employees in the School Setting. National School
Boards Association, April, 1990; Brad Goorian. Sexual Misconduct by School Employees. ERIC Digest Number 134,
December 1999.

2
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 [125 Ed.Law Rep. [1055]]
(1998). Supreme Court held that a school district may be liable for teacher–to–student sexual harassment under Title
IX where (1) the teacher was the harasser, (2) school official had actual knowledge of the misconduct, and (3) school
official acted with deliberate indifference to the misconduct.

3
480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987).

4
O’Connor v. Ortega, 480 U.S. 709, 724–726, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (emphasis added).

5
469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 [21 Ed.Law Rep. [1122]] (1985).

6
O’Connor, 480 U.S. at 719–720, 107 S.Ct. 1492.

7
470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 [23 Ed.Law Rep. [473]] (1985).

8
Charles Yoo, Library tension turns to tragedy, The Atlanta Journal–Constitution, Sunday, September 29, 2002, at C1.

9
O’Connor, 480 U.S. at 724, 107 S.Ct. 1492.

10
Tara L. Eyer & Clarence C. Kegel, Jr., Confidentiality Of School Personnel Matters And Due Process Restrictions On
The School Board: Developing Rational Policies, Balancing Interests, And Resolving A Recurrent Dilemma, 101
Dick. L. Rev. 325, 376 (1997).

11
In Scrivner v. Socorro Independent School District, et al., 169 F.3d 969 (5th Cir. 1999), a teacher filed a
lawsuit against the school district claiming that her principal sexually harassed and retaliated against her. The school
district had investigated the principal on two separate occasions. The first investigation was conducted after the
school district received an anonymous letter that the principal was sexually harassing teachers. The Plaintiff, as well
as other teachers, stated that they had not witnessed any sexually harassing conduct by the principal. Finding no
tangible evidence of sexual harassment, the principal was given a warning. The second investigation was conducted
following Plaintiff’s allegations that the principal’s harassing behavior had intensified and because the principal
called Plaintiff a lesbian. The principal was subsequently removed from his position. With respect to Plaintiff’s
lawsuit against the school district, the Court granted summary judgment for the school district observing that “[w]hen

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an employer initiates a good–faith investigation of charges of discrimination, it must be able to rely on the evidence it
collects.” Id. at 973. Thus, the school district’s response to the alleged misconduct was reasonable and
vigorous. The teacher, on the other hand, lied during the first investigation about the principal’s conduct, misled the
investigator, and thereby thwarted the school district’s effort to remedy the misconduct.

12
The investigation should be prompt and any failure on the complainant’s part to cooperate should be noted because it
may serve as a defense. In Kendrick v. Country Club Hills Bd. of Educ. No. 160, 1998 WL 440891 (N.D. Ill. 1998), a
school guidance counselor sued her employer claiming that she was sexually harassed by her principal in violation of
Title VII of the Civil Rights Act. The Court found in favor of the School District because the plaintiff failed to notify
anyone of the principal’s misconduct, give a statement or cooperate with the school’s investigation as required by the
school’s sexual harassment policy.

13
Other forms of disciplinary action may include oral warnings, reprimands, suspensions (with or without pay),
probation, and depending on the severity of the misconduct, transfer and/or demotions.

14
Melzer v. Board of Educ. of the City School Dist. of City of New York, 196 F.Supp.2d 229 (E.D.N.Y. 2002), where
Court found that teacher’s First Amendment right to speak out on matters of public concerns outweighed by the
school officials’ interest in efficient operation of the school free from interference and disruption. Here, the Court
found that a teacher’s dismissal was appropriate because of significant concerns of students who explained that they
would not be able to concentrate in a classroom taught by a teacher who advocated sex between men and boys.

15
Mustaf Sheikh v. Independent Sch. Dist. 535, 2001 U.S. Dist. LEXIS 17452 (D. Minn. October 18, 2001), which
involved a claim of national origin discrimination by a Plaintiff who was a practicing Muslim and native of Somalia.
Plaintiff would clasp his hands and bow when greeting women but would not shake hands. Female school employees
and Plaintiff both raised complaints which resulted in a school district investigation. Thereafter, Plaintiff was laid off
with several other non–Muslim employees due to a reduction in force initiative and for lack of seniority. Plaintiff filed
a discrimination lawsuit but Court granted summary judgment for the employer finding that Plaintiff was not
terminated because of his religious beliefs or national origin. However, Court expressed a deep concern that the
working environment with diverse cultures and religious practices be both respected and celebrated by all.

182 WELR 21

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