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Simple paid suspension is
not an
adverse employment action. |
Davis v. Legal Services Alabama (11th
Cir 12/02/2021)
http://case.lawmemo.com/11/davis1.pdf
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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