October 28, 2021

Volume XI, Number 301

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The Cuomo Report: An Employment Lawyer’s Takeaways and Tips on Conducting Workplace Investigations

The August 3, 2021, report regarding the sexual harassment allegations brought against former New York governor Andrew Cuomo, “Report of Investigation into Allegations of Sexual Harassment by Governor Andrew M. Cuomo” resulted in his resignation on August 10, 2021, and renewed attention to the #MeToo movement. As a political wonk and an employment lawyer, these events have been of great interest. Also noteworthy, are the lessons one can glean from the report in how to conduct an effective workplace investigation.

Credibility is key to any workplace investigation. Judging credibility and articulating the basis for what makes a witness credible (or not) is perhaps the most important skill of any workplace investigator. In finding that the allegations against Governor Cuomo were credible, the Cuomo investigators relied on the fact that the complaints were contemporaneously memorialized and timely reported, the motivation of the complaining witnesses (particularly their reticence to complain), the specific nature of the allegations, photographs, and text messages, among other factors. These factors—particularly when compared with Governor Cuomo’s “generalized statement[s]” and “blanket denials”—were overwhelming.

The Cuomo investigators also described why they found the allegations against the governor credible. By including long quotes of witnesses, they let the witnesses speak for themselves—showing (not telling) the reader what they found. Consider the following examples:

I knew I could feel him pushing my body against his and definitely making sure that he could feel my breasts up against his body. And was doing it in a way that I felt was obviously uncomfortable for me and he was maybe trying to get some sort of personal satisfaction from it.

I mean it was—he was like cupping my breast. He cupped my breast. I have to tell you it was—at the moment I was in such shock that I could just tell you that I just remember looking down seeing his hand, seeing the top of my bra and I remember it was like a little even the cup—the kind of bra that I had to the point I could tell you doesn’t really fit me properly, it was a little loose, I just remember seeing exactly that.

The investigators also brought all that they found together to bear on the question of credibility—providing important lessons in report writing for all workplace investigators. The following quotes from the report relay the investigators credibility determinations.

We found Trooper #1 to be credible in demeanor and in the substance of her allegations. Her allegations were corroborated by others who witnessed certain of the relevant conduct and contemporaneous documents, as well as accounts of interactions she had had with the Governor that she provided to a number of her colleagues at the time. We found the level of detail and consistency in her account, and the circumstances of Trooper #1’s allegations to be credible and supported by the other evidence we found in the investigation.

Importantly, Trooper #1 had no desire to make her allegations public or to bring them to anyone’s attention.

We found Executive Assistant #1 to be credible both in demeanor and in the substance of her allegations. The experiences she had with the Governor were difficult for her to recount, but she did so with care and seriousness. She testified about what she could recall with specificity and she credibly noted things that she did not recall. She did not overstate or seek to exaggerate the allegations, but simply recounted the incidents she remembered.

The Governor’s blanket denials and lack of recollection as to specific incidents stood in stark contrast to the strength, specificity, and corroboration of the complainants’ recollections, as well as the reports of many other individuals who offered observations and experiences of the Governor’s conduct.

Governor Cuomo denied a number of Executive Assistant #1’s allegations, but we found that his denials lacked persuasiveness, were devoid of detail, and were inconsistent with many witnesses’ observations of his behavior toward Executive Assistant #1 and other women in the Executive Chamber.

For the most part, investigators will not have the resources available to the New York attorney general in the Cuomo investigation (to say nothing of the investigator’s power to subpoena witnesses and documents). Moreover, most investigators have practical time and financial constraints in conducting a workplace investigation—much less preparing a 165-page report with 1,371 footnotes. But lessons can be learned here to apply to even run-of-the-mill investigations—particularly lessons in how to gauge and describe the credibility of witnesses to an investigation.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 230
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About this Author

Michael Clarkson, Ogletree Deakins, personnel policy attorney, drug testing issues lawyer
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Mr. Clarkson is licensed to practice in Massachusetts and regularly appears in state and federal courts and before administrative agencies across the country.  In his work with Ogletree Deakins, Mr. Clarkson litigates cases and counsels large and small private for-profit and not-for-profit employers concerning discrimination, harassment, retaliation, non-compete, wage and hour, employment contract, personnel policy and drug testing issues.  Mr. Clarkson is Chair of the Ogletree Deakins’ Drug Testing Practice Group and has particular expertise in drafting drug testing...

617-994-5727
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