Many employers assume that initiating a workplace investigation after a complaint is inherently neutral and protective. A recent Tenth Circuit decision—Byrnes v. St. Catherine Hospital—is a reminder that the way an investigation is designed and conducted can itself support a retaliation claim if it appears biased or outcome-driven.

The Underlying Facts

A physician reported alleged sexual harassment by a colleague. The hospital concluded the complaint lacked merit. Months later, it conducted a one-day investigation into alleged misconduct by the physician, which included several notable flaws:

• The physician was never interviewed, which was contrary to the hospital’s investigation procedures
• No nurses were interviewed, even though “nurse concerns” were cited
• Investigators relied on selective accounts without testing contrary evidence

Senior decision-makers accepted the investigation’s conclusions without independent review or giving the physician an opportunity to respond, ultimately recommending termination and referral to the state licensing board. Although the district court granted summary judgment for the employer, the Tenth Circuit reversed, allowing the physician to proceed on two retaliation theories.

Retaliation Can Arise From Process—Not Just Outcome

Federal anti-retaliation laws broadly protect employees who engage in protected activity, such as reporting harassment or discrimination.

The court did not hold that the investigation itself was a “materially adverse action.” Instead, it focused on whether the manner of the investigation reflected retaliatory animus and served as the causal link to the adverse employment actions. Under a “cat’s paw” theory, an employer may be liable where biased investigators influence decision-makers who rely on tainted findings without independent vetting.

Here, skipped interviews, selective fact-gathering, and unquestioned reliance on the investigation’s conclusions were enough for a jury to infer retaliation.

The court also allowed a second retaliation claim to proceed based on the hospital’s referral to the licensing board. Although the employer pointed to an outside peer review process, the court emphasized that the hospital controlled which matters were referred and how findings were handled. Evidence of differential treatment and lack of opportunity to respond supported a potential retaliatory motive.

Key Employer Takeaways

• Investigations remain essential. A good-faith investigation is a normal and expected response to complaints—and is not retaliation by itself.
• Process matters. One-sided investigations, departures from established procedures, or selective evidence-gathering can be used to show retaliatory intent.
• Consistency and documentation are critical. Align investigations and outcomes with policy and past practice, and document the full process.

Bottom line: Train internal investigators on best practices, and when an external investigator is needed, choose carefully. A flawed process can undo even well-intentioned decisions.

To learn more about conducting effective internal investigations, don’t miss our three-day intensive workshop coming up soon!  Register here!  (Space is limited.)

About Shaw Law Group 

At Shaw Law Group, we do more than practice employment law—we partner with employers to build compliant, respectful, and productive workplaces. From day-to-day advice and counsel to impartial workplace investigations, proactive HR audits, dynamic training programs, and sensitive pre-litigation matters, our experienced team helps clients stay ahead of the curve—and out of court.