important holdings expanding the arsenal of “pretext” evidence available to employees, including a holding that the type of investigation conducted into the basis for terminating a plaintiff alleging unlawful discrimination or retaliation may itself evidence pretext. First, the court found that an investigation conducted by a supervisor with an axe to grind, or some- one beholden to that supervisor, may con- stitute evidence of pretext because “such investigation could ‘exploit [ ] a discipli- nary process predisposed to confirm all charges.’” (Id. at 277.) The Court also addressed the role a deficient investiga- tion may play in proving pretext, holding that, “[a]n employer’s failure to interview witnesses for potentially exculpatory infor- mation [when firing an employee for alleged misconduct] evidences pretext. (Id. at 280.) Nazir’s importance in defeating
summary-adjudication motions cannot be overstated. (The California Supreme Court recently cited Nazir with approval in Reid v. Google as an example of defen- dants overburdening the courts with unnecessary objections.) Apart from the treasure trove of quotes dictating that such motions should rarely be granted, the substantive holding that deficient investigations will support an inference of pretext will likely save many discrimination claims resting on tenuous circumstantial evidence. The reality is that most employer
investigations into the basis for firing employees are deficient in a myriad of ways. Few employers use unbiased investigators and often the “investigator” is the same individual being accused of unlawful animus. Additionally, most employer investigations do not include interviews of all key witnesses with potentially exculpatory evidence. For plaintiffs it will often be a simple matter, once helpful witnesses are uncovered in discovery, to argue that they should have been interviewed by the employer before taking the adverse employment action. Moreover, as with Roby, Reid and Johnson, Nazir expands the scope of discovery into the details of an employer’s investigations.
APRIL 2011 The Advocate Magazine — 89
While it may be too soon to assess the
impact of Nazir on trial courts’ willingness to throw out employment cases on summary judgment, the trend in recent
appellate decisions seems to favor trial on the merits. Nazir’s impact was, for example, evident in the court of appeals’ decision in Sandell v. Taylor-Listug, Inc.
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