Not every suspension is retaliation

HR professionals sometimes warn managers that suspending an employee without pay can backfire—even if it’s for what seem like legitimate reasons. The problem is the potential for a retaliation lawsuit if the employee has previously complained about discrimination.

The employee may argue that an unpaid suspension could dissuade a reasonable employee from complaining in the first place. There have been cases, including Supreme Court precedent, that have concluded as much.

But a recent case highlights that an unpaid suspension isn’t automatically an adverse employment action. It all depends on how the employee responds and how long the suspension lasts, as this recent case shows.

Recent case: Javier worked for the U.S. Postal Service. He filed frequent discrimination complaints both internally and with the EEOC. Then, after he allegedly tried to strike a supervisor with a vehicle and the two argued in the workplace, the supervisor demanded to see a valid drivers’ license. He could not produce it and was suspended without pay.

Two days later, he produced a so-called occupational license that allowed him to drive for work but not for other purposes following a charge that he had driven under the influence of alcohol. He was reinstated and received back pay.

He sued anyway, alleging that the suspension had been punishment for filing discrimination complaints and not for other legitimate reasons. He argued this was retaliation.

The lower court agreed, concluding that an unpaid suspension, if motivated by protected activity like an EEOC complaint, is always an adverse employment action.

But on appeal, that was re­­versed. The 5th Circuit Court of Appeals said that each suspension must be considered individually. It noted that Javier had presented no evidence that the brief suspension harmed him financially, physically or emotionally. His appeal was dismissed. (Cabral v. Brennan, 5th Cir., 2017)