Failing to investigate without more is not an adverse employment action

Failing to investigate without more is not an adverse employment action
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Fincher v. Depository Trust & Clearing Corp., ____F.3d____ (2d Cir. May 14, 2010), is an important case, here. In this Title VII case, the 2d held that employer’s failure to investigate a complaint of alleged employment discrimination is not an adverse employment action taken in retaliation for the filing of the complaint. As the court states:

“We are of the view nonetheless that, at least in a run-of-the-mine case such as this one, 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 discriminationcomplaint.

“We thus adopt the position previously taken by several district courts in this Circuit. See, e.g., Thomlison v. Sharp Elecs. Corp., No. 99 Civ. 9539, 2000 WL 1909774, at *4,2000 U.S. Dist. LEXIS 18979, at *12-13 (S.D.N.Y. Dec. 18, 2000). "Affirmative efforts to punish a complaining employee are at the heart of any retaliation claim." Id., 2000 WL1909774, at *4, 2000 U.S. Dist. LEXIS 18979, at *12.

“An employee whose complaint is not investigated cannot be said to have thereby suffered a punishment for bringing that same complaint: Her situation in the wake of her having made the complaint is the same as it would have been had she not brought the complaint or had the complaint been investigated but denied for good reason or for none at all. Put another way, an employee's knowledge that her employer has declined to investigate her complaint will not ordinarily constitute a threat of further harm, recognizing, of course, that it would hardly provide a positive incentive to lodge such a further challenge.

”We do not mean to suggest that failure to investigate a complaint cannot ever be considered an adverse employment action….”

Mitchell H. Rubinstein

The text of the decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/ac0eefa7-991f-4892-bce6-6153b07bd531/1/doc/08-5013-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ac0eefa7-991f-4892-bce6-6153b07bd531/1/hilite/