Recently, Judge John J. McConnell, Jr., of the U.S. District Court for the District of Rhode Island heard a claim from a female employee who says she was placed on a paid suspension after announcing that she was pregnant.
Although the employer continued to pay the employee during a suspension, the court held that the suspension was punitive in nature, became part of her permanent employment record, and affected her ability to advance, find future employment, and gain valuable job experience.
The court concluded that those facts, combined with evidence that the employee’s job performance went unchallenged until she announced her pregnancy and complained about perceived mistreatment, was enough for a jury to find that the suspension was illegal. Thus, the case was allowed to proceed to trial.
Pregnancy Announcement, Then Complaints
In October 2012, “Amelia” began working for Joseph’s Gourmet Co. Pasta Sauce, a subsidiary of Nestlé Prepared Foods Company, as an account manager. Her sales territory included Rhode Island, Connecticut, and Massachusetts. She worked from home and reported primarily to “Brad,” who was based in Minnesota.
On March 25, 2013, Amelia informed Brad that she was pregnant. Almost immediately, she alleged that his treatment of her changed for the worse. Before her announcement, Brad had sent her laudatory e-mails, including a February 2013 e-mail thanking her and a coworker for making Joseph’s “a better company.” Amelia claimed that Brad became agitated after her pregnancy announcement and started treating her differently. She lodged two complaints with HR: the first on March 27 and the second on May 7. She also met with Brad in person and complained about his perceived discrimination.
Less than a week after Amelia filed her second complaint with HR, Brad, who lacked the authority to suspend her, submitted a memorandum to HR recommending that Nestlé suspend her. He included a long list of perceived problems with her performance. Several of the alleged issues dated back to her first few months of work, but none of the issues that allegedly occurred before her pregnancy announcement were documented. Nevertheless, Nestlé management approved the suspension on the same day it received Brad’s memo. The company suspended Amelia with pay, and other members of the sales team picked up her accounts.
Subsequently, Amelia took disability leave, gave birth, and tendered her resignation. She filed claims against Nestlé for disparate treatment discrimination, hostile work environment, and retaliation.
Employer Argues Paid Suspension is Not Actionable
After approximately 1-½ years of litigation, Nestlé moved for summary judgment on all of Amelia’s claims. Nestlé argued that even when viewing the evidence in the light most favorable to her, there was not a genuine dispute regarding a material fact and that it was entitled to judgment as a matter of law.
Yes, Amelia had been pregnant, and yes, she was replaced by employees who were not. But Nestlé argued that she had not satisfied her prima facie (initial) burden of showing that she (1) was performing her job satisfactorily and (2) experienced an adverse employment action.
For an employee to proceed with a discrimination or retaliation claim, she must have experienced an “adverse employment action.” Courts around the country have held that a paid suspension does not constitute an actionable adverse employment action, and Nestlé argued that point in an attempt to have Amelia’s claims dismissed.
Judge Disagrees
Judge McConnell denied Nestlé’s attempt to dismiss Amelia’s disparate treatment and retaliation claims. Judge McConnell held that Amelia’s receipt of multiple e-mails with positive feedback from Brad and customers before her pregnancy announcement was enough to create a factual dispute over whether she was performing satisfactorily. Furthermore, Judge McConnell held that the fact that Nestlé continued to pay her during her suspension did not preclude the suspension from amounting to an adverse employment action.
The U.S. 1st Circuit Court of Appeals—which covers Maine, Massachusetts, New Hampshire, and Rhode Island—does not appear to have decided the issue, but at least six other courts of appeals, including the 2nd, 3rd, 4th, 5th, 6th, and 8th Circuits, have held that placing an employee on paid administrative leave is not an adverse employment action.
Judge McConnell declined to follow those courts and instead held that a “suspension, regardless of whether it is paid, is adverse to the employee in and of itself.” Judge McConnell noted that any suspension 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 gain . . . valuable job experience.”
Too Much Remained in Dispute
Having concluded that Amelia had experienced an adverse employment action, Judge McConnell proceeded to the question of whether her job performance was the true reason for her paid suspension or whether pregnancy discrimination or retaliation was the true reason.
Judge McConnell concluded that there remained a genuine dispute over whether Brad’s memorandum, Amelia’s pregnancy, or her complaints about Brad were the real cause of her suspension. Temporal proximity alone is generally insufficient to prove pretext (an excuse), but Judge McConnell noted that Brad wrote the memorandum just 7 weeks after Amelia’s pregnancy announcement and only 6 days after her second complaint to HR.
Furthermore, none of the memorandum’s criticisms of Amelia’s alleged conduct before her pregnancy announcement were documented, and the criticisms were inconsistent with the complimentary e-mails she had received during that period.
Judge McConnell concluded that all of the facts could allow a jury to reasonably infer that Nestlé’s stated reasons for suspending Amelia were pretextual. He suggested that if the contents of the memorandum were true, Nestlé might have warned her or placed her on a performance improvement plan before suspending her. Mosunic v. Nestlé Prepared Foods Co.
Lessons for Employers
First and foremost, Nestlé might have avoided the lawsuit altogether if it had gathered better evidence of the alleged issues with Amelia’s performance before her pregnancy announcement or if it had engaged in progressive discipline (e.g., oral counseling, a written warning, or a performance improvement plan) prior to issuing a suspension.
Second, because Amelia’s suspension came less than 1 week after her second complaint to HR, Nestlé should have given more scrutiny to Brad’s suggested discipline. Such close temporal connections—although not dispositive—are impossible to ignore.
Third, unless and until the 1st Circuit holds otherwise, employers in Rhode Island should not assume that they can dodge potential discrimination or retaliation claims by simply continuing to pay employees during a period of discipline. Despite the lack of lost wages, an employee may be able to argue—at least in Judge McConnell’s courtroom—that discipline short of termination or an unpaid suspension is still enough of an adverse employment action to support a lawsuit.
From Judge McConnell’s decision, however, it is unclear where a court should draw the line. Arguably, even a written warning is a black mark on an employee’s personnel record that could hurt her employment prospects in the future. If lost wages are not necessary to support a discrimination or retaliation claim, it is much easier for an employee to get in front of a jury. Doing away with that requirement could lead to a slippery slope.
Matthew H. Parker is a partner at Whelan, Corrente, Flanders, Kinder & Siket LLP in Providence, specializing in employment law and business litigation. Parker is also an editor of Rhode Island Employment Law Letter. He can be reached at 401-270-4500 or mparker@whelancorrente.com.