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Fincher v. Depository Trust and Clearing Corp.

May 14, 2010



Appeal from the award of summary judgment by the United States District Court for the Southern District of New York (William H. Pauley, Judge) dismissing plaintiff Cynthia Fincher's employment discrimination and related claims against her former employer, the Depository Trust and Clearing Corporation. The plaintiff alleges, in part, that the defendant retaliated against her for bringing a complaint of discrimination by declining to investigate that complaint. We conclude 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. Because the plaintiff's remaining discrimination claims also lack merit, we affirm the judgment of the district court.


The opinion of the court was delivered by: Sack, Circuit Judge

Argued: October 15, 2009

Before: SACK, LIVINGSTON, and LYNCH, Circuit Judges.

The plaintiff, Cynthia Fincher, is an African-American woman who was employed by the defendant, Depository Trust and Clearing Corporation ("DTCC"). She first held the position of product manager in the company's International Tax Department. Thereafter, she was a Senior Auditor in the Financial/Operations Division of the company's Audit Department. She resigned her employment on June 5, 2006. She subsequently brought suit in the United States District Court for the Southern District of New York alleging that she was the victim of racial discrimination with respect to training opportunities, performance evaluations, and salary decisions during her time in the Audit Department. She also claimed that she was subjected to unlawful retaliation, a hostile work environment, and constructive discharge. Central to the latter three claims was Fincher's contention that DTCC failed to investigate a complaint of discrimination that she allegedly made to the company's senior director of employee relations.

Upon motion for summary judgment by DTCC, the district court (William H. Pauley, Judge) dismissed all of Fincher's claims. Fincher appeals, arguing that DTCC's failure to investigate her complaint of discrimination was itself an act of retaliation for making the discrimination complaint, and that it also contributed to a hostile work environment and her constructive discharge. Fincher also challenges the dismissal of her underlying discrimination claims on the ground that the district court improperly disregarded her deposition testimony that her manager at the defendant's auditing department told her that she had been given inadequate training because of her race.

Accepting as we must at this stage of the proceedings that Fincher's testimony to the effect that DTCC failed to investigate her complaint of racial discrimination is true, we nonetheless conclude that such a failure does not constitute an adverse employment action taken in retaliation for the filing of the same discrimination complaint. We also conclude that Fincher has failed to raise a triable issue of material fact as to her other claims of retaliation, or her claims of hostile work environment or constructive discharge. And inasmuch as Fincher has failed to support her underlying discrimination claims with more than a "scintilla of evidence," summary judgment as to those claims was also proper.

We therefore affirm the judgment of the district court.


Fincher was employed by DTCC from February 2001 to June 2006. She worked as a product manager for the company's International Tax Department until that position was eliminated in October 2004. She then moved to the company's Financial/Operations Division of the Audit Department, where she was a Senior Auditor despite a lack of auditing experience. Between October 2004 and May 2006, in order to perform her duties, she relied upon several training courses provided to all auditors in her department, an audit manual, and guidance from co-workers.

Fincher testified that a co-worker on her first assignment worked with an experienced manager. Fincher's first manager was, by contrast, a consultant unfamiliar with DTCC auditing procedures. And on one occasion, two of Fincher's coworkers underwent unspecified training at a session that Fincher was not asked to attend.

In March 2005, Fincher received an official "Performance Appraisal" for her first two months in the Audit Department during 2004. It was signed by the Audit Department manager, Mark Hudson. It contained a handwritten note addressed to Fincher explaining that she had received "[a] good first review but further audit skill development is needed before more indepth [sic] feedback can be given. Keep trying. . . ." 2004 Appraisal at 1. She received a mark of "Fully Competent" in every performance category for which she was graded. "Fully Competent" was in the middle of the grading scale, which ranged from "Unacceptable" to "Exceptional."

Fincher's Performance Appraisal for 2005, compiled in this instance by Fincher's supervisor Donald Simpson, and then approved by Hudson on January 11, 2006, reflected a grade of "Requires Improvement" for most of the performance categories. For this performance evaluation, managers were instructed to give a grade of "Requires Improvement" only to employees in the bottom 5-15% of the company. Fincher's review contained several "Fully Competent" evaluations, reserved for employees in the middle 55-65% of the company, but also several "Unacceptable" grades, reserved for the bottom 0-5% of employees. For example, Fincher received a grade of "Unacceptable" under "Demonstrates the technical/functional skills to do the job," and under "Can be counted on to complete assignments with minimal follow-up." 2005 Appraisal at 2, 3. A concluding section labeled "Manager's Comments" asserted that Fincher frequently failed to meet deadlines and indicated that the department's managers had a poor overall impression of Fincher's work. Id. at 4.

On March 1, 2006, Fincher received by email attachment a Project Evaluation for a particular audit that she had completed. It reflected the grade of "Requires Improvement" in every category for which an evaluation was given.

On March 23, 2006, Fincher received a written "Performance Warning" from Hudson. It purported to document various perceived shortcomings in Fincher's work, including failure to complete tasks "within allotted timeframes." It also informed Fincher that she was "being placed on written warning for poor performance. . . . [F]ailure to immediately improve and sustain an acceptable level of performance, or further performance deficiencies, will result in further disciplinary action, up to and including termination of your employment." Memorandum from Mark Hudson to Cynthia Fincher, "Written Performance Warning," Mar. 23, 2006.

In late March 2006, Fincher had a conversation with Charles Smith, the Senior Director of Employee Relations at DTCC, in the lobby of their office building. They were professional and social acquaintances who occasionally lunched together. According to Fincher, she complained to Smith that "black people were set up to fail at [the Auditing] department because they were not provided and given the same training opportunities as the white employees." Fincher Dep. 202. Smith's recollection is different.*fn1

About one week later, Fincher and Smith had another conversation as to which their recollections also conflict. According to Fincher, she asked Smith whether he or his manager was planning to take action in response to the complaint of discrimination she had made during their first conversation. Smith told her that the complaint would not be addressed.*fn2

Fincher also testified to a conversation she had with her manager, Mark Hudson, in his office in May 2006. He "admitted to me," she said, "that he was forced to write me up, and he . . . had informed [Human Resources Employee Elizabeth] Baez that I did not receive proper training, and he admitted that I was discriminated against." Fincher Dep. 125. She said he said that "[she] was not the only one being ...

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