Last month, the Seventh Circuit Court of Appeals decided a racial discrimination and retaliation case involving an African-American police officer.  In Nichols v. Southern Ill. Univ.-Edwardsville, the court affirmed the district court’s grant of summary judgment for the employer.  The court found that the University’s placement of the officer on a paid administrative leave following an investigation of his use of force to restrain a mentally unstable woman was not a materially adverse employment action as defined under the retaliation provisions of Title VII.

The plaintiff alleged that the leave had been motivated by retaliation against him due to complaints over discriminatory work practices.  However, the Seventh Circuit found that he failed to show that his position, salary, or benefits were impacted by the paid administrative leave, and that he was reinstated to active duty following the conclusion of the investigation.  With this decision, the court joins three other circuits, including the Fourth Circuit (which includes North and South Carolina), which have also held that placing an employee on paid administrative leave pending the results of an investigation does not constitute a materially adverse employment action.

In its Burlington Northern decision, the U.S. Supreme Court found that unpaid leave, with pay reinstated retroactively did constitute materially adverse action due to the financial hardship suffered by the plaintiff during the leave.  This decision reflects a continuing trend among lower courts in the wake of Burlington Northern, finding that paid leaves, counseling and warnings, and similar lower levels of disciplinary action by employers as a matter of law, do not rise to the level of retaliation under Title VII.  These courts appear hesitant to remove from employers ordinary tools required to investigate and deal with serious allegations of employee misconduct.