EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS – Cursory Investigation

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An inadequate or cursory investigation supports an inference of unlawful motive because it reveals an employer’s disinterest in whether misconduct truly occurred and thus that the stated reasons for the adverse action are not the actual motivating reasons. While our cases often use the word “cursory” to describe this indicium, it is not merely hasty or perfunctory investigations that indicate unlawful motive. We have found unlawful motive where an employer makes an allegation of misconduct against an employee but fails to investigate critical elements of the accusation. Likewise, an investigation tailored to produce a predetermined outcome indicates unlawful motive. Context is critical when examining whether an inadequate or cursory investigation signals unlawful motive. For example, the Board found that a brief investigation of a grievance was not evidence of unlawful motive where a grievance procedure allowed only five days to conduct an investigation and respond. Here, the University failed to investigate the several critical predicate facts underlying its conclusion that Charging Parties knowingly violated policy, including by seeking out witnesses, campus surveillance, mileage records or other relevant evidence. These missing parts of the investigation were not needless redundancies, but rather go to the heart of whether Charging Parties engaged in conscious and knowing violations as the University claimed when it terminated them. Thus, the University’s failure to pursue these facts indicates disinterest in whether the alleged misconduct actually occurred and strongly signals unlawful motive. Indeed, because an inadequate investigation can prevent an employer from learning the true facts, it can, as here, result in a disproportionate punishment, which is a further indicator of unlawful motive. (pp. 24-28, 41.)