                             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




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