; McAllister v. Adecco USA Inc., 2018 WL 6112956, at *8 (D. Haw. Nov. 21, 2018), aff'd sub nom. McAllister v. Brunk, 812 Fed.Appx. 708 (9th Cir. 2020) (failure to investigate is not an adverse employment action); McKissick v. City of Reno, 2019 WL 3241161, at *12 (D. Nev. July 18, 2019) (“[A]ccepting Plaintiffs' reliance on the handling of the investigations to establish adverse employment action would erode the policy reason for encouraging employers to investigate complaints for fear that an investigation would lead to a claim of retaliation based on an inadequate investigation.”
(“[P]laintiff's allegations that defendants failed to investigate her complaints are insufficient to raise an inference that defendants' failure to act was motivated by discriminatory or retaliatory intent.”) (citing Brown, 446 Fed.Appx. at 72); see also McAllister v. Adecco USA Inc., 2018 WL 6112956, at *8 (D. Haw. Nov. 21, 2018), aff'd sub nom. McAllister v. Brunk, 812 Fed.Appx. 708 (9th Cir. 2020) (failure to investigate is not an adverse employment action); Blount v. Morgan Stanley Smith Barney LLC, 982 F.Supp.2d 1077, 1082 (N.D. Cal. 2013), aff'd, 624 Fed.Appx. 965 (9th Cir. 2015) (no adverse employment action unless a plaintiff's requests are repeatedly refused or ignored); McKissick v. City of Reno, 2019 WL 3241161, at *12 (D. Nev. July 18, 2019) (“[A]ccepting Plaintiffs' reliance on the handling of the investigations to establish adverse employment action would erode the policy reason for encouraging employers to investigate complaints for fear that an investigation would lead to a claim of retaliation based on an inadequate investigation.”)
If no reasonable person could have believed the conduct complained of constituted unlawful discrimination, then the charge is not protected activity. See Holloway v. Eastbridge Workforce Sols., No. CV-18-00795-PHX-SMB, 2019 WL 1059969, at *4 (D. Ariz. Mar. 6, 2019) (citing McAllister v. Adecco USA Inc., No. CV 16-00447 DKW-KJM, 2018 WL 6112956, at *8 (D. Haw. Nov. 21, 2018), aff'd sub nom. McAllister v. Brunk, 812 Fed.Appx. 708 (9th Cir. 2020)). It is well settled, however, that the participation clause protects an employee from retaliation regardless of the merits of the charge of discrimination.