EdLawConnect Blog

As an attorney who frequently conducts personnel investigations for clients, I often encounter situations where all that I have is a "he said, she said" situation without any other witnesses. This hurdle does not mean that I do not investigate the matter thoroughly. It is fairly well known that all investigations need to be prompt, thorough and effective. Personnel investigations may be eventually reviewed by the Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC) if a complaint is brought to them. If you are involved in litigation over a personnel issue, your investigation may be reviewed by a judge or jury. Given the stakes involved, the lack of witnesses may mean that it is more crucial to make a determination on who is more credible in the particular matter.

In addition, I also encounter complainants who indicate that nothing was done regarding a prior personnel complaint because there were no witnesses, so everybody involved was just told to watch their step in the future. Unfortunately, as is often the case, the inappropriate behavior continues and you are left with a matter that now has escalated in a variety of ways. In some cases, you cannot proceed with discipline when your investigation reveals that you are dealing with a case of one person’s word against another’s. However, it is usually less risky to make such disciplinary decisions based upon an investigation where a credibility analysis is prepared. This short review will give you an idea of how that can be accomplished.

If you are investigating a personnel complaint, you are expected to make determinations even if it is not obvious what happened. You must thoroughly investigate any corroborating evidence, evaluate the feasibility of each version of events, evaluate any motives to fabricate, and assess the credibility of witnesses. The investigator of a personnel complaint then makes a good faith decision on what occurred.

Several factors can be considered when you are making a credibility determination. Although none of these factors are determinative individually, they are helpful in analyzing the credibility of your witnesses when viewed as a whole. Some of those factors that are helpful in making a credibility determination are:

1. Each person's motive to lie;
2. The inherent plausibility of each person's version of events;
3. Corroborating evidence that would tend to support each person's story;
4. The past record of each person such as a pattern of similar behavior or false reports; and
5. Each person’s demeanor when they are interviewed about the incident.

Many administrators make informal determinations every day using some of the factors above and others. An administrator may decide that a student’s story just does not add up so the administrator is reluctant to impose discipline against a teacher who denies wrongdoing and has always been truthful. An administrator may be uncomfortable in pursuing discipline against a teacher when it appears likely that a student is just trying to get retribution for a bad grade and the teacher has no history of inappropriate behavior. We recommend that those credibility determinations be made whenever possible during personnel investigations, and that the credibility analysis be documented in writing when preparing a report in any personnel investigation.