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Lack of Discrimination Inquiry Not Retaliation, Court Rules

May 19, 2010
Related Topics: Harassment, Discrimination and EEOC Compliance, Latest News

An employer’s failure to investigate a discrimination complaint cannot itself be considered retaliation, the 2nd U.S. Circuit Court of Appeals in New York has ruled.

According to the opinion earlier this month in Cynthia M. Fincher v. Depository Trust and Clearing Corp., Fincher is an African-American who was employed by New York-based DTCC as a senior auditor when she resigned in 2006.

She subsequently brought suit against DTCC alleging that she was a racial discrimination victim with respect to training opportunities, performance evaluations and salary decisions.

She also alleged that she was subjected to unlawful retaliation, a hostile work environment and constructive discharge. Central to these three claims was her contention that DTCC failed to investigate a discrimination complaint she said she made to the company’s senior director of employee relations, according to the decision.

“We have said that ‘there are no bright-line rules’ with respect to what constitutes an adverse employment action for purposes of a retaliation claim,” the three-judge panel said in its unanimous ruling.

“We are of the view nonetheless that … an employer’s failure to investigate a complaint of discrimination cannot be considered an adverse employment action taken in retaliation for the filing of the same discrimination claim. We thus adopt the position previously taken by several district courts in this circuit. … An employee whose complaint is not investigated cannot be said to have thereby suffered a punishment for bringing that same complaint,” the appeals court stated in upholding a lower court ruling.

“We do not mean to suggest that failure to investigate a complaint cannot ever be considered an adverse employment for purposes of a retaliation claim,” the court added. “It can be if the failure is in retaliation for some separate, protected act by the plaintiff.”

The appeals court also upheld the lower court’s dismissal of Fincher’s remaining discrimination claim.

Daniel A. Schwartz, a member of law firm Pullman & Comley in Hartford, Connecticut, who was not involved in the case, said the decision is a “helpful guidepost” for employers.

“I think what the court was saying is—the retaliation claims seem to have no end to them—that people were claiming that everything seemed to be retaliation, even if the underlying discrimination claim had no merit,” Schwartz said.

The court says here, though, that “there are limits to retaliation claims, that in this particular case we’re not going to allow an employee to sue on a failure to investigate, that there’s not enough there,” he said.

Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management. To comment, e-mail

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