To state a claim for retaliation under Title VII, a plaintiff must show that: (1) he engaged in conduct protected by Title VII; (2) he suffered a materially adverse action; and (3) a causal connection exists between the protected activity and the adverse action. For an employer's action to qualify as a materially adverse action, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, meaning that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.
In the Cabral v. Brennan decision issued last week, the Fifth Circuit affirmed summary judgment for the United States Postal Service (USPS) and agreed that a two-day suspension without pay did not constitute a materially adverse employment action to support a Title VII retaliation claim. A copy of the decision can be found here: http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions.
In Cabral, the USPS suspended a letter carrier for two days without pay after a supervisor asked Cabral to produce a valid driver's license and he failed to do so. At the time of the incident, Cabral had already filed multiple charges of discrimination against the USPS, as well as multiple union grievances. A few weeks later, the USPS reimbursed Cabral for any lost pay.
Interestingly, the Court's decision did not turn on the fact that the USPS made Cabral whole by making up the back pay, or a finding that a reasonable employee would not have been dissuaded from bringing a charge. In contrast, it turned on the fact that Cabral did not show that his suspension exacted a physical, emotional, or economic toll. The Court rejected his conclusory statements attesting to the emotional or psychological harm he suffered because of the suspension, and noted that he failed to provide any supporting documentation.
In short, a suspension without pay could constitute a materially adverse action, but currently, this is not a bright-line rule in the Fifth Circuit. Employers faced with retaliation claims should ensure they engage in sufficient discovery related to the plaintiff's emotional state following the challenged action.