While some courts have held that a paid suspension is not an adverse employment action, some judges have recognized how a paid suspension can deter an employee from engaging in further protected conduct and is therefore a retaliatory adverse action:
- Because suspension without pay is a way to dissuade employees from engaging in protected conduct, the suspension of an AIR21 whistleblower for two weeks without pay was an adverse employment action. Cont’l Airlines, Inc. v. Admin. Review Bd., USDOL, No. 15-60012 (5th Cir. Jan. 7, 2016) (unpublished) (2016 U.S. App. LEXIS 324; 2016 WL 97461)(case below ARB No. 10-026, ALJ No. 2008-AIR-00009).
- “Suspension, regardless of whether it is paid, is adverse to the employee in and of itself. It is punitive in nature and at a minimum becomes part of one’s permanent employment record, affecting one’s ability for advancement, or to find other future employment, or gaining valuable job experience.” Mosunic v. Nestle Prepared Foods Co., No. 15-cv-380, 2017 WL 3531465, at *3 (D.R.I. Aug. 16, 2017).
- Loss of opportunities to gain job experience and exclusion from career-building work, including when such loss of opportunity results from a paid suspension, amounts to an adverse employment. Dahlia v. Rodriquez, 735 F.3d 1060, 1078 (9th Cir. 2013) (being placed on administrative leave can constitute an adverse employment action for purposes of a First Amendment retaliation claim).
- “Although administrative leave with pay may be welcomed by some, the threat of forced leave could reasonably deter employees who prefer working from engaging in protected activity.” Dilettoso v. Potter, No. CV 04-0566-PHX-NVW, 2006 WL 197146, at *8 (D. Ariz. Jan. 25, 2006).
As the First Circuit has held, “employment actions are less susceptible to categorical treatment when it comes to the question of whether they are or are not materially adverse.” Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 472 (1st Cir. 2010). Instead, whether a challenged action is materially adverse is “an objective test and ‘should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.’ ” Id. (quoting Burlington Northern, 548 U.S. at 71, 126 S.Ct. 2405).
In a False Claims Act whistleblower retaliation case, a district judge found that even though the plaintiff continued to receive full benefits, salary, and commissions as if she had reached 100% of her quota during her administrative leave, the leave was materially adverse because:
- she was prohibited from working for about a year, and thus, could not grow herself professionally; and
- she lost the opportunity to attend a “President’s Circle trip” and the opportunity to earn commissions above the 100% quota.
Under these circumstances, a jury could conclude that the leave was materially adverse.
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