School districts and other public employers often place employees on paid administrative leave while an investigation into potential misconduct is pending. Paid leave can be an effective tool to temporarily remove someone from the work environment while concerns are being evaluated, before it is determined whether actual disciplinary action is warranted. But a new case serves as a cautionary tale about potential legal risks if paid administrative leave is used excessively or improperly.
In Moore v. City of New Brighton, a police sergeant (Moore) filed a union grievance claiming that the city violated the officers’ collective bargaining agreement by requiring employees to attend a training outside of their work hours but without overtime pay. The department denied the grievance, but eventually the city agreed to pay the employees overtime for the training.
Within a month of filing the grievance, the department launched two investigations into alleged improper conduct by Moore: one alleging that he had improperly approved a subordinate officer’s unscheduled work hours, and another alleging that he had fraudulently called in sick. He was placed on paid administrative leave pending the investigations. The investigations took two months to complete, and the department found Moore at fault for the improper approval of hours, but not for the sick-time issue. The City imposed a five-day unpaid suspension for the violation but did not inform him that he had been exonerated on the other issue or that the investigation into that matter was complete. Instead, the city kept the officer on paid leave for an additional seven months, amounting to nine months of total paid leave. According to the city, the reason for the extended leave was that Moore’s union representative and the city were discussing a potential early retirement and severance package.
When Moore was eventually allowed to return, he was reassigned to an administrative desk job, and received a negative performance evaluation for the previous year. After a tense year-and-a-half, he was also issued an oral reprimand for insubordination. Shortly thereafter, Moore filed suit alleging retaliation under the Minnesota Whistleblower Act. His claim was that the City’s post-grievance conduct—including the investigations, paid leave, reassignment, and negative performance evaluation—constituted illegal retaliation against him for filing a union grievance.
The district court granted summary judgment in favor of the city, holding that none of the alleged conduct constituted an “adverse employment action” for purposes of stating a valid retaliation claim. But the Minnesota Court of Appeals disagreed and concluded that, in some circumstances, placement on paid administrative leave could constitute a “penalty” under the statute, which is defined as conduct that “might dissuade a reasonable employee from making or supporting a report.” The court referenced multiple decisions from other courts finding that administrative leave could constitute an adverse action under Title VII retaliation claims. Therefore, the court held that there was enough evidence to allow a jury to possibly conclude that the leave may have been sufficient to meet the “penalize” standard. And the additional acts, including the reassignment and poor performance review, could also be part of a cumulative series of decisions constituting an adverse action.
The court further held that there was enough evidence to at least create a factual dispute on the question of whether the grievance was the cause of the actions and whether the city’s purported justifications were mere pretexts. The court therefore reversed the district court’s summary judgment decision and remanded for further proceedings.
These facts are somewhat unusual, as it is not typical for an employer to keep an employee on paid administrative leave for several months after an investigation has ended. But Moore does serve as an important reminder that paid leave is not an automatic safe zone for employers. If leave appears unnecessary or excessively long, Moore confirms that the leave could be deemed an adverse action if the employee attempts to bring a retaliation claim based on some sort of protected action. Although limited to whistleblower claims in this case, it is likely that the court would apply a similar rule to retaliation claims under other statutes, including discrimination laws.
It is therefore advisable that school districts carefully use paid administrative leave only when necessary in light of the circumstances, nature, and severity of the alleged conduct, and generally only for the period in which the investigation is actually pending. Excessive use of such leave as a matter of convenience could enhance the risk that a district could be vulnerable to a retaliation claim, or, at a minimum, make such claims more difficult to defeat.
This article is intended to provide general information with commentary. It should not be relied on as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.
Adam Wattenbarger is an education law attorney with the law firm of Kennedy & Graven, Chartered. For more information, please contact him at (612) 337-9306 or www.kennedy-graven.com.
© Adam C. Wattenbarger (2019). Used by permission.