Declining to cooperate with investigation isn’t protected

Before an employee can sue for retaliation, she has to show she participated in some form of protected activity—filing an EEOC or internal discrimination complaint, for example.

But what about refusing to cooperate with an employer’s investigation?

Recent case: Carolyn Miller is of German descent. A statue of a German soldier and a fake military certificate showed up on her desk.

When HR learned about the incident, it told Miller to remove the items while it investigated. Miller refused to cooperate, perceiving the demand as anti-Germanic discrimination.

She was fired shortly after and sued, alleging she was fired for refusing to participate in the investigation.

The court dismissed the case, concluding such a refusal was not protected activity. (Miller v. Empress Casino, No. 09-C-760, ND IL, 2009)

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