Employer’s Failure to Investigate Complaint Not Retaliation
May 14, 2010
In Fincher v. Depository Trust and Clearing Corp., 2010 WL 1931637 (2d Cir. May 14, 2010), Plaintiff alleged that her employer’s failure to investigate her discrimination complaint was an adverse employment action (a required element of a prima facie case of retaliation). The court disagreed, “conclud[ing] 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 complaint.” The failure to investigate – at least in the “run-of-the-mill” case does not constitute an “adverse” action. Instead, “[a]ffirmative efforts to punish a complaining employee are at the heart of any retaliation claim.” Here, there was no “adverse” action, the employee was in the same place both before and after her compliant – there was no investigation done. Thus, the Second Circuit affirmed summary judgment for the employer on the plaintiff’s retaliation claim.
It is important to note that the court indicated that if the employer’s failure to investigate a complaint was in retaliation for some separate event (not the filing of the same complaint that the employer then failed to investigate), then this may constitute an adverse action. To illustrate, the Court used the example of the case of an FBI employee who made a complaint of discrimination and later received death threats, which the FBI refused to investigate in retaliation for the earlier compliant of discrimination.
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