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Simple paid suspension is not an
adverse employment action.

Davis v. Legal Services Alabama (11th Cir 12/02/2021)
Sent to Custom Alerts™ subscribers on 12/03/2021

The 11th Circuit joined several other Circuit courts in holding that a simple paid suspension is not an adverse employment action for purposes of a race discrimination claim. The other Circuits are 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, and Federal Circuits.

Davis, who is Black, was executive director of Legal Services Alabama (LSA), a non-profit, for about a year before he resigned and sued claiming race discrimination. Prior to his resignation, LSA placed him on paid leave pending investigation of complaints by some of his subordinates and colleagues. LSA's stated reasons for the investigation involved spending decisions, not following policies when hiring, creating new initiatives without Board approval, and creating a hostile work environment for some employees.

The 11th Circuit pointed out that a paid suspension "can be a useful tool for an employer to hit 'pause' and investigate when an employee has been accused of wrongdoing. And that is particularly so in a case like this one—where the employee under investigation is in charge of all the employees who are the witnesses. As a practical matter, employers cannot expect employees to speak freely to investigators when the person under investigation is looking over their shoulders. Employers should be able to utilize the paid-suspension tool in good faith, when necessary, without fear of Title VII liability."

Davis argued that the manner in which his suspension was handled, and the circumstances that accompanied it, combined to amount to an adverse employment action. But the court disagreed.

Here are Davis' claims and the court's responses:

(1) LSA disclosed the suspension to an individual who had opposed Davis' earlier political campaign. However, Davis offered no evidence that LSA purposely hired that individual because of the bad blood between him and Davis.

(2) The suspension occurred days before a high-profile LSA reception with the state bar, yet there was no evidence that LSA intentionally timed the suspension with the state bar event to embarrass Davis.

(3) LSA compiled a narrative of reasons for the suspension in the suspension letter. To this, the court said, "And it is perfectly reasonable that LSA would compile its reasons for the suspension in a document to give to Davis to avoid any accusations of arbitrariness."

(4) LSA placed a guard in the building in the aftermath of the suspension, but there was no evidence that placing a guard in the building after a suspension was out of the ordinary for LSA.

Davis also argued that because he was the executive director, he served as the public face of LSA, so the paid suspension was more adverse to him than it would be to a low-level employee. However, the court pointed out that, "Davis has offered no authority, and we have found none, to support the notion that whether an action constitutes an adverse employment action should depend on whether the employee is high-ranking in the organization."

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