Digital Realty’s Amnesia: Can’t Recall Witnesses

No Evidence of Sarah Schubert’s Alleged “Investigations” Three Years Later.

No 2. In a Series on Retaliation in the Workplace:

When a company does a proper and legal termination of an employee for legitimate, non-discriminatory reasons, it may include an investigation.  Investigations can be devastating to an employee’s career and, as it follows, their personal life.  A reputation is earned over many years and company that recklessly dives into an investigation should be prepared to pay out multi-millions in damages if the employee is successful in proving were damaged by the company.  If the company officers or managers acted out of hatred or ill-will, a jury could award punitive damages in line the defendant’s wealth.  In recent years, several courts across the country have acted to put limits on the size of punitive awards. For example, in California, several courts have not allowed punitive damages to exceed 10 percent of the defendant’s net worth. Storage Servs. v Oosterbaan (1989)214 CA3d 498, 515, 262 CR 689; Michelson v Hamada (1994) 29 CA4th 1566, 1596, 36 CR2d 343. Workplace investigations are serious matters that can open companies up to big liabilities if done improperly or for the wrong reasons.

Digital had no need to investigate Somers, as a result, they could not have followed any kind of protocol.  Real investigators rely on witnesses.  Investigations Should involve the person being investigated.  Digital never notified Somers of any investigations likely because there was nothing to investigate. Digital’s bungled efforts which they refer to were compared to the Society for Human Resource Management (SHRM) standards. One extremely important factor is the report at the end of the process.

According to SHRM, every report should include:

  • The incident being investigated, 
  • Dates
  • The individuals involved.
  • Key factual findings and credibility determinations.
  • Applicable employer policies or guidelines.
  • Summaries of witness statements.
  • Specific conclusions.
  • The name of the person making a final decision.
  • Issues that couldn’t be resolved.
  • Employer actions that were taken.

According to Digital, HR secretly investigated Somers based on “complaints.”  They produced a rather sketchy 1.5-page report which indicated the facts came from  “sources deemed to be reliable.”  Digital’s lawyers continue to rely on these nameless and faceless people as the backbone of their defense.  The result of the so-called investigations are far-fetched and random.

Digital’s report was compared with the SHRM’s checklist:

  • The incident being investigated,
  • Dates.
  • The individuals involved.
  • Key factual findings and credibility determinations.
  • Applicable employer policies or guidelines.
  • Summaries of witness statements.
  • Specific conclusions.
  • The name of the person making a final decision.
  • Issues that couldn’t be resolved.
  • Employer actions taken.

Digital failed to include in their ‘report’  titled “Critical Events”  all of the above items.  That may have worked internally when they wished to justify an illegal termination.  Digital is now defending themselves in federal court and under intense scrutiny.  For example, Somers attorney demanded the following items which were due in July 2015:

  • Names of the witnesses who were supposedly in the investigation
  • Date and time of the investigations
  • Copies of the calendar events by the investigator and witnesses

Nothing has been provided to date.  Digital’s attorney recently stated:

Digital has conducted an extensive review for responsive documents and has not located anything further. We believe that Defendants have sufficiently responded to this request.”  

So here’s the takeaway:  Digital’s entire defense is a poorly written page and a half of defamation with no date and no author. It will likely be proven to have been co-authored by Kris Kumar and Sarah Schubert with contributions by Sam Lee and with a short fable courtesy of Amandine Wang.  Only an attorney interested in fee generation would have advised a client to get involved in a 5-7 year legal battle using a memo that no one will admit to writing because opened them up to claims of defamation. Digital Realty|Chubb may be foolish to continue to put their credibility on the line and press ahead trying to build a case on evidence that doesn’t exist.

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