One-Time pay penalty can’t be challenged years later

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in Discrimination and Harassment,Human Resources

A temporary suspension without pay is a one-time event, and employees can’t use it as the basis of a lawsuit years later. Those who allege such a pay loss must file a complaint promptly; they can’t argue that later consequences open the door to a lawsuit again.

Still, it’s best to suspend an employee with pay and make a prompt final decision.

Recent case: Sheila Moss worked for the Port Authority on 9/11. She escaped from the World Trade Center without serious injury but suffered post-traumatic shock disorder and went on disability leave.

When Moss was deemed fit to return to work, she refused. The Port Authority marked her AWOL and docked her pay. A month later, she was again placed on disability leave.

Moss didn’t file an ADA complaint until more than a year later, past the deadline. But she argued that there were consequences to her pay suspension, since it remained on her record. That fact, she argued, caused a “continuing violation” that extended the ADA filing period.

But the 2nd Circuit Court of Appeals disagreed. A one-time pay suspension is just that: a discrete act, not a continuing violation, even if her disciplinary record reflected the incident. If she wanted to challenge it, she should have done so earlier. (Moss v. The Port Authority of New York and New Jersey, No. 04-CV-9631, SD NY, 2006)

Final note: The U.S. Supreme Court is set to decide whether employees can sue years later if an initial pay decision based on sex discrimination means they’re still feeling the impact in every paycheck. Look for the high court’s decision early this year.  

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