Suspension Without Pay for Hitting Supervisor With A Vehicle Is Not Retaliation. No Kidding.

Some employees will litigate any employment decision they don't like, even if there appears to be little or no basis for a claim. A recent example comes to us in a decision from the U.S. Court of Appeals for the 5^th Circuit, Cabral v. Brennan, (5th Cir., No. 16-50661, 4/10/17). In this case, Mr. Cabral, a postal worker, was suspended for two days without pay after he hit one of his supervisors with a postal vehicle and was unable to produce a valid driver's license or occupational license after the incident. Cabral, who is a Mexican-American over the age of 40, alleged that the suspension was actually in retaliation for his complaints about race, national origin and age discrimination.

That's right--he hit a supervisor with a vehicle. And was suspended. Did Mr. Cabral really think he would not be disciplined for that?

The 5^th Circuit ruled that the employer was entitled to summary judgment, reversing the district court below. The basis for the 5^th Circuit's decision was that the two-day suspension without pay was not a "materially adverse" action that would support a claim for retaliation under Title VII. A materially adverse action is one that would dissuade a reasonable employee from making or supporting discrimination charges. The 5^th Circuit noted that whether a suspension is considered a "materially adverse" action will depend on the specific facts of each case. Mr. Cabral was unable to present any evidence other than his own stated conclusions that he experienced emotional or psychological harm because of the suspension, and therefore, could not, as a matter of law, show that the suspension was a "materially adverse" action.

The Takeaway: Some employees think that if they make a complaint about discrimination, they are suddenly made of Teflon and protected by the anti-retaliation provision of Title VII from any and all discipline. That is not the case. However, employers do need to exercise extra care in disciplining employees who have engaged in protected activity such as complaining about discrimination in the workplace. As we have noted in a previous blog post, retaliation is the most frequent claim in EEOC Charges. This court decision gives attorneys another tool for successfully fighting retaliation actions.