In the United States Court of Appeals For the Seventh Circuit ____________ No. 00-2766 MICHAEL FLANAGAN, et al., Plaintiffs-Appellants, v. JOHN ASHCROFT, Attorney General of the United States, and DRUG ENFORCEMENT AGENCY, Defendants-Appellees. ____________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 2083—Elaine E. Bucklo, Judge. ____________ ARGUED MAY 23, 2002—DECIDED JANUARY 21, 2003 ____________ Before FLAUM, Chief Judge, and BAUER and ROVNER, Circuit Judges. ROVNER, Circuit Judge. After receiving a complaint that an instructor at its Chicago-based Basic Narcotics Training School used offensive language while conduct- ing a seminar in the fall of 1994, the Drug Enforcement Agency began an investigation that eventually expanded to include five DEA agents who worked as seminar instruc- tors: Michael Flanagan, Norbert Kuksta, Melvin Schabilion, Saul Weinstein, and Francis White. White resigned in the face of a proposal that he be terminated; the other agents were transferred to different cities. All five agents then 2 No. 00-2766 filed suit under Title VII charging that the DEA “mishan- dled” the investigation because they are white, male, and, in Weinstein’s case, Jewish, and that the transfers, pro- posed dismissal, and other employment decisions were acts of retaliation for their opposition to unlawful em- ployment discrimination. The district court dismissed the discrimination count and granted summary judgment for the DEA on the retaliation count, and the agents appeal. As the basis for their discrimination claim, the agents alleged that the DEA’s conduct of its investigation was “egregious” and “unprofessional,” that the DEA treated the agents and other witnesses in a “hostile and accusatory manner” and in such a way as to “give credence to false accusations” and to cause the circulation among the Chi- cago law enforcement community of “untrue rumors con- cerning [the agents’] professional competence and alleged misconduct,” and that the botched investigation resulted in a “sexually charged, racially charged, hostile and offen- sive working environment.” The district court, thinking these allegations similar to those in McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996), dismissed the discrimination count for failure to state a claim upon which relief may be granted. The plaintiffs in McDonnell were HUD employ- ees who were accused by an anonymous complainant of engaging in job-related sexual misconduct. Id. at 257. HUD initiated an investigation during which, according to the plaintiffs, investigators interviewed witnesses in a “hostile and unprofessional manner” and indicated “their personal belief that the plaintiffs were guilty of the charges,” thereby “g[iving] rise to even more lurid rumors” that “made the plaintiffs pariahs” among their co-work- ers. Id. at 257-58. We affirmed the dismissal of the McDonnell complaint, holding that “an investigation of sexual harassment that exceeds the proper limits is [not] itself a form of actionable sexual harassment.” Id. at 260- 61. Permitting discrimination claims based on such inves- No. 00-2766 3 tigations, we explained, would “place[ ] employer[s] on a razor’s edge”: ignore complaints of sexual harassment and face Title VII liability if the complaints are meritor- ious, or investigate them thoroughly and face discrim- ination claims from the targeted employees. Id. at 261; see also, e.g., Malik v. Carrier Corp., 202 F.3d 97 (2d Cir. 2000) (relying on similar reasoning to hold that claim for negli- gent infliction of emotional distress may not be premised on an employer’s sexual harassment investigation). We agree with the district court’s conclusion that this case is on all fours with McDonnell; indeed, the allegations are nearly identical. The agents argue that their case is different because any investigation into their conduct would have been unwarranted; the very decision to inves- tigate the complaint, they insist, is evidence of harass- ment. We see no important distinction, however, between a decision to investigate and the extent of an investiga- tion. Moreover, the agents’ suggestion that an employer is not entitled to investigate a sexual harassment com- plaint is untenable, see, e.g., Malik, 202 F.3d at 105 (“[A]n employer’s investigation of a sexual harassment com- plaint is not a gratuitous or optional undertaking; under federal law, an employer’s failure to investigate may allow a jury to impose liability on the employer.”); Mc- Donnell, 84 F.3d at 260 (“Employers who disregard charges of sex-related misconduct by their employees run a con- siderable risk of being sanctioned for having tolerated sexual harassment.”), and in any event, as the language we quoted above makes clear, this was not the crux of the agents’ complaint. The district court granted summary judgment to the DEA on the retaliation count because the DEA intro- duced evidence showing that all employment actions taken against the agents were based solely on the orig- inal complaint, the ensuing investigation (in which the DEA found that each of the agents had engaged in miscon- 4 No. 00-2766 duct), and on a harassment suit filed against the agents by female seminar attendees and the attendant negative publicity. See, e.g., Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.) (“If the defendant pres- ents unrebutted evidence of a noninvidious reason for the adverse action, he is entitled to summary judgment.”), cert. denied, 123 S. Ct. 79 (2002). In their brief the agents assert that the district court ignored evidence showing that the DEA’s explanation was pretextual, but they point specifically only to an unsworn document they call “the invidious list,” which details instances in which the DEA purportedly favored minority and female employees. Because the agents’ counsel disclaimed any reliance on the list as evidence of pretext at oral argu- ment, we do not address it. AFFIRMED. A true Copy: Teste: ________________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-02-C-0072—1-21-03