By Kate Acheson
Public employees are protected in the exercise of their First Amendment rights. This allows them to bring lawsuits when an employer’s retaliatiatory action is significant enough to constitute an “adverse employment action.” Not every employer action rises to that level.
However, in a pair of somewhat conflicting recent cases, the Ninth Circuit seems to be leaning to the view that an employee’s placement on administrative leave may, under some circumstances, constitute an adverse employment action.
In the first case, in Dahlia v. Stehr, the Ninth Circuit avoided discussing whether administrative leave constitutes adverse employment action by granting qualified immunity for the plaintiff/supervisor. The Court reasoned that, because it was not “clearly established” whether the officer in Stehr had a right protecting him against being placed on administrative leave at the time of the challenged conduct, the supervisor could not have knowingly violated the rights of the employee and, therefore, could not be found liable.
In the next case however, Dahlia v. Rodriguez, the Ninth Circuit found that an employee’s placement on administrative leave may, under some circumstances, constitute an adverse employment action. Unfortunately, the record in Rodriguez was not fully enough developed to rule on whether the administrative leave in that case was itself an adverse employment action. The record only included unsubstantiated allegations that being placed on leave prevented the employee from taking the sergeant’s exam, required him to forfeit on-call and holiday pay, and prevented him from furthering his investigative experience. However, the Ninth Circuit suggested that, if the allegations of the employee were proven, it would have found the administrative leave constituted an adverse employment action because an adverse employment action must only be “reasonably likely to deter employees from engaging in protected activity.” On these same grounds, the Ninth Circuit also suggested that paid administrative leave may even constitute an adverse employment action if it creates a materially adverse change in working conditions or benefits.
