Absence of Discrimination Probe not Retaliation

May 14, 2010 (PLANSPONSOR.com) – An employer’s failure to look into a bias complaint by an employee is not a retaliatory act against the person submitting the bias charges, a federal appellate court has ruled.

The ruling by the 2nd U.S. Circuit Court of Appeals came in a suit by a former auditor at the Depository Trust & Clearing Corp. (DTCC) who complained that black auditors got less than adequate training, which predisposed them to fail. DTCC did not act on the complaint, plaintiff Cynthia Fincher claimed, to get back at her for filing it. Fincher filed suit in June 2006 after her resignation.

Circuit Judge Robert D. Sack, writing for the court, ruled that the absence of a company investigation can’t be counted as retaliation.

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,” Sack wrote. “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.”

The 2nd Circuit ruling is here.