United States: Rhode Island Court: Paid Suspension Is Adverse Employment Action

Last Updated: January 31 2018

Article by Matthew H. Parker, Whelan, Corrente, Flanders, Kinder & Siket LLP

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions