Retaliation cases can be more difficult for employers to defend because “revenge” is a motive easily understood and identified with. From a purely legal standpoint, retaliation cases are also more problematic to defend because of the wider variety of employment actions that are actionable under a retaliation theory. In discrimination claims, only ultimate employment actions (i.e., failure to hire, promote, terminate) are actionable. In the retaliation context, any materially adverse action may lead to a retaliation claim. A materially adverse action is one that might dissuade a reasonable worker from making or participating a discrimination complaint.
A recent case from the Fifth Circuit is one for employment lawyers defending employers in retaliation cases should keep close at hand when analyzing whether the act complained of by the plaintiff-employee constitutes a materially adverse action. In Cabral v. Brennan, U.S. Postal Service employee Cabral brought a retaliation claim against his employer following a two day suspension. Cabral have previously filed three charges of discrimination with his employer. When Cabral returned from a suspension following an incident where he struck a supervisor with a postal vehicle, he claimed that his supervisor began harassing him with questions. He was ultimately suspended for two days without pay after his supervisor asked him to produce a valid driver’s license and Cabral refused. When he finally produced an occupational driver’s license (Cabral had a DWI conviction and a suspended driver’s license), he was reinstated. Several weeks later, he was reimbursed for the two day suspension.
The Fifth Circuit considered whether Cabral’s two day suspension constituted a materially adverse action sufficient to state a claim for retaliation. The Court contrasted Cabral’s two day suspension with that of the Plaintiff in Burlington N. & Santa Fe Ry. Co. v. White, where the U.S. Supreme Court found that a 37 day paid suspension (later reimbursed by the railroad) of a single mother during the holiday season and that caused her to fall into deep depression and the resulting physical, emotional, and economic burdens she sustained was sufficient to create a fact issue on whether a materially adverse action occurred. Given that Cabral produced only conclusory evidence (and no documentation) that he suffered emotional and psychological harm because of the two-day suspension, the Court affirmed the trial court’s summary judgment that the two day suspension did not constitute a materially adverse action.
The takeaway for employers is that even in a retaliation case, not every adverse action the employee suffers will be sufficient to get the case to trial and careful consideration should be given to whether the challenged action is sufficient to constitute a materially adverse action. For plaintiffs, Cabral teaches that strong, detailed evidence of the physical, emotional and economic impact to the plaintiff of the challenged action is the key to getting the case through summary judgment and on to trial.
A copy of the opinion can be downloaded here.