The Third Circuit has held that a suspension with pay does not constitute an adverse employment action. Jones v. SEPTA, 2015 U.S. App. LEXIS 14094 (3rd Cir. August 12, 2015).
A common solution for an employer who is investigating an employee for misconduct in the workplace is to place the employee on a temporary paid suspension. This was the case for former administrative assistant Michelle Jones of the Revenue Operations at Southeastern Pennsylvania Transportation Authority (SEPTA).
Jones was suspended with pay on December 1, 2010 after her supervisor learned that she was turning in fraudulent timesheets. Following this suspension, Jones requested to file a complaint about her supervisor with the Equal Employment Opportunity (EEO) Office, claiming that her supervisor had been sexually harassing her and then retaliated against her.
The Office of Inspector General confirmed that Jones had received pay for days she hadn’t worked. She was placed on unpaid suspension in February of 2011 and ultimately terminated in April 2011. Jones filed suit against SEPTA and her supervisor in federal court, claiming gender discrimination and retaliation in violation of Title VII. A common law wrongful termination claim was dismissed, and the trial court granted summary judgment on the other claims. Jones appealed.
The Third Circuit affirmed. The primary reasoning behind the court’s decision was that Jones’s claims failed because her suspension with pay did not constitute an adverse employment action under Title VII. Although on suspension, there was no evidence that Jones being placed on paid leave had the purpose of an intent to lead to her termination from SEPTA. A paid suspension, said the court, does not fall under the category of either a termination or a failure to hire and it does not change compensation at all. While a question of first impression in the Third Circuit, every appellate court that has addressed the issue has come to the conclusion that “a suspension with pay, ‘without more,’ is not an adverse employment action under the substantive provision of Title VII.” The court had no problem finding that “this chorus is on pitch.”
The court, however, stressed that is was looking only at what constitutes an “adverse employment action” under the substantive provisions of Title VII’s section 703, not the retaliation provisions of section 704. That issue was not before the court.
Jones also claimed that her work environment was hostile because of discrimination since she could not tell her supervisor about her sexual harassment because he was the one doing the harassing. SEPTA was entitled to a Faragher-Ellerth defense, however, because SEPTA provided other ways in which Jones could have raised her concerns.
This blog was written by K&S Summer Intern Dorsey Yearly.