Employers often assume that launching an investigation is a safe harbor.
The Tenth Circuit just delivered a reminder that when decisionmakers rely on a flawed investigation, the process can matter as much as the decision itself.
TL;DR: The Tenth Circuit revived two Title VII retaliation claims after a physician reported alleged sexual harassment by another doctor and was later terminated and reported to a state licensing board. Although an investigation alone is rarely actionable retaliation, the court held a jury could find that a one-sided internal investigation – including skipped interviews, selective fact-gathering, and uncritical reliance by senior decisionmakers – supplied the retaliatory animus and causation for materially adverse actions under a cat’s paw theory.
What happened
A physician, who had previously served as chief medical officer, reported that another doctor was sexually harassing nurses. The employer concluded the allegations lacked merit.
Months later, the hospital received a subpoena from the Kansas medical licensing board based on an anonymous complaint accusing the physician of serious patient-care misconduct. Two senior officials conducted a one-day internal investigation. They interviewed several doctors, but they did not interview the physician and did not interview any nurses. They then reported their findings upward and recommended termination. Two higher-level executives jointly made the termination decision.
After the termination, the hospital sent some of the physician’s cases for outside peer review and ultimately reported four cases to the Kansas medical licensing board.
The district court granted summary judgment to the employer on both retaliation theories. The Tenth Circuit reversed and remanded.
Retaliation theory #1 – termination influenced by the investigation
The termination claim proceeded under a cat’s paw theory, which allows liability where biased subordinates influence an otherwise unbiased decisionmaker.
Here, the court did not treat the investigation itself as a materially adverse action. Instead, it examined whether the manner in which the investigation was conducted could be viewed as reflecting retaliatory animus and then driving the termination decision.
The court emphasized that a reasonable jury could focus on the investigative choices:
- the investigators did not interview the physician, despite internal practices calling for it,
- they did not interview any nurses, even though alleged nurse concerns were cited as justification, and
- they relied on selective accounts without testing contrary evidence.
Those choices mattered because the final decisionmakers relied on the investigation’s conclusions without independently verifying the facts or giving the physician an opportunity to explain his side of the story. On that record, a jury could find the investigation supplied the causation for the termination under a cat’s paw theory.
Retaliation theory #2 – reporting to the licensing board
The second retaliation claim also turned on process.
The district court treated the outside peer review committee as the decisionmaker. The Tenth Circuit disagreed, holding that a reasonable jury could find the hospital itself effectively controlled which cases were reviewed, how findings were handled, and which cases were ultimately reported.
Evidence of differential treatment, including whether the physician was allowed to respond to adverse findings and how similarly situated surgeons were treated, supported an inference that the reporting decisions were influenced by retaliatory motive.
Three employer takeaways
1. Investigations remain essential
Courts do not treat investigations as retaliation simply because an employee previously engaged in protected activity.
2. But reliance matters
When decisionmakers accept investigative conclusions without independent scrutiny, any bias embedded in the process can be attributed to the final decision.
3. Process consistency counts
Peer review and licensing referrals may be examined for consistency and control, particularly where the employer shapes the inputs and outcomes.
The Bottom Line
Retaliation claims are not always about the final call.
Sometimes they turn on whether the employer can defend the process that produced it.