Mark Wiletsky
When an employee complains of discrimination or harassment, companies often investigate the matter. Doing so allows a company to address alleged improper behavior and it may allow the company to avoid potential liability – if it takes prompt remedial action. But what if the employee believes the company’s investigation was half-hearted or inadequate – is that retaliatory? A recent decision from the Tenth Circuit Court of Appeals affirms that even a shoddy investigation does not give rise to a retaliation claim, absent some additional harm.
Stacie Culp and Stephanie Peters worked as servers at a restaurant operated by Remington of Montrose Golf Club (Remington). Both alleged that they were sexually harassed by the bartender / assistant floor manager. Initially, neither Culp nor Peters reported the harassment. Peters alleged that Remington management had not taken action in response to past complaints, and Culp feared that her complaints would not be taken seriously.
Culp eventually mentioned the harassment to a manager at a different restaurant, where she applied to return to her former job. This information reached Remington’s management, prompting an investigation. Remington interviewed 10 female servers, but asked each person only two questions: (1) is there anything inappropriate around the bartender that you would like to disclose or talk about, and is there anything you would like to add? Remington did not ask the individuals whether they had witnessed any inappropriate conduct between Culp or Peters and the bartender, nor did it ask follow-up questions, even when the interviewees disclosed harassment or other inappropriate conduct.
Following the investigation, Remington suspended the bartender for five days without pay, demoted him from his managerial position, and placed him on probation for 30 days. Culp and Peters later resigned.
The Lawsuit
Culp and Peters filed a lawsuit against Remington, asserting claims of sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964 and the Colorado Anti-Discrimination Act (CADA). The district court granted summary judgment in favor of Remington on Peters’ retaliation claim, which Peters then appealed.
Title VII and CADA protect employees from retaliation by their employers when they engage in protected activity, including reporting alleged harassment or discrimination. For an action to be considered retaliatory, it must be “materially adverse,” meaning it should be significant enough to dissuade a reasonable worker from making or supporting a charge of discrimination or engaging in other protected activity. Peters argued that Remington’s investigation into the harassment was the materially adverse action. She asserted that the investigation was dismissive of her allegations.
Inadequate Investigation is not Retaliatory
In its decision, the Tenth Circuit began its analysis by noting that a failure to investigate does not, by itself, constitute an adverse action. An employer might not investigate an allegation of discrimination or harassment because of a good faith belief that the allegation is meritless. Based on that precedent, the court held that an inadequate investigation, on its own, does not amount to retaliation unless it leads to “demonstrable harm.” According to the court, the critical factor is whether the plaintiff is worse off due to the employer’s failure to investigate or inadequate investigation.
In this case, Peters did not prove that the so-called half-hearted investigation caused her demonstrable harm. The court emphasized that dismissiveness or inadequate investigation amounts to a minor inconvenience and does not qualify as a materially adverse action under Title VII.
Practical Tips
Although the failure to investigate – or conduct a solid investigation – may not necessarily give rise to a retaliation claim, employers should be aware that investigations remain an important tool in combatting unlawful conduct in the workplace. When investigating allegations of misconduct, including discrimination or harassment, be sure to ask open-ended questions, and more specific ones about the conduct or behavior at issue, to gather necessary information to make a judgment call. The classic “who,” “what,” “when,” “where,” and “how” questions are a great starting point, and be sure to ask if anyone witnessed the conduct at issue. It is critical to follow-up on what the witnesses say during those interviews. If employees disclose improper conduct, ask about it – it may be your best chance to fully understand what happened so that you can take appropriate action. If you know only part of the story, you may not make the best decision under the circumstances – and that could lead to a lawsuit.
