Court Says Employer’s Failure to Investigate Bias Claim Not Retaliation

A federal appeals court in New York said an employer’s failure to investigate a bias complaint does not constitute retaliation for filing the accusation.

Friday’s ruling by the U.S. Second Circuit Court of Appeals is a victory for the Depository Trust and Clearing Corp, a clearinghouse that provides custodial and asset servicing for about 3.5 million securities valued at nearly $34 trillion.

It could also prove significant in other cases where plaintiffs accuse their employers of ignoring complaints alleging bias. The Second Circuit includes New York, where financial services companies regularly face bias lawsuits.

The case was brought by Cynthia Fincher, a former DTCC auditor who sued following her June 2006 resignation.

Among her claims was the DTCC created a hostile workplace that effectively forced her from her job, after ignoring her complaint to a senior official that “black people were set up to fail” in the audit unit by receiving inadequate training.

Writing for a unanimous three-judge panel, Judge Robert Sack said there are no “bright-line rules” to determine what is an “adverse employment action” that constitutes retaliation.

But he found 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.”

He said such a failure “will not ordinarily constitute a threat of further harm,” though it could support a retaliation claim if the failure were in retaliation for some “separate, protected act” by a plaintiff.

Stephen Mitchell, a lawyer for Fincher, said he was “extremely disappointed” with the ruling, and would consider an appeal to the U.S. Supreme Court.

“Telling someone who complains against unlawful discrimination that they’re not going to investigate would certainly dissuade them from complaining in the future,” he said. “How does that encourage anyone to stay at a job?”

Fredric Leffler, a lawyer at Proskauer Rose LLP representing the DTCC, called the ruling a “practical holding” that “helps shield employers from frivolous claims,” and leaves open other means for alleged bias victims to seek redress.

“What the court is trying to do is say, if you make a complaint and it is not being investigated, there may be other avenues,” he said. “If human resources fails to investigate, there could still be a managing director, an ombudsman or an equal opportunity officer who may be responsive.”

The case is Fincher v. Depository Trust and Clearing Corp, U.S. Second Circuit Court of Appeals, No. 08-5013.

(Reporting by Jonathan Stempel, editing by Dave Zimmerman, Gary Hill)

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