Virginia Lawyers Weekly VA Lawyers Weekly
Where a bank employee was placed on paid leave after she complained about her colleagues’ conduct, her allegation that the bank violated the antiretaliation provisions of the Sarbanes-Oxley Act, or SOX, fails. Placing an employee on paid administrative leave does not, in and of itself, constitute a material adverse action for purposes of a retaliation claim.
Background
Shazia Kashif alleges that PNC Bank N.A. violated the antiretaliation provisions of SOX when—after plaintiff complained to her supervisor about her colleagues’ conduct—it placed her on paid administrative leave and then, after plaintiff resigned, refused to accept her subsequent attempt at rescission. PNC moves for summary judgment by arguing, among other things, that plaintiff has failed to carry her burden of establishing a prima facie case that (1) she suffered an “unfavorable personnel action” and (2) her internal complaints contributed to the personnel action defendant took.
Even assuming plaintiff could carry her burden of establishing a prima facie case of retaliation, defendant argues it still must prevail because the “clear and convincing evidence” in the record shows that plaintiff’s internal complaints were not a “but for” cause of her ultimate separation from PNC.
Unfavorable personnel action
Plaintiff claims she suffered an unfavorable personnel action when defendant placed her on administrative leave with termination “inevitabl[y]” to follow. A person who has been placed on administrative leave and then terminated has suffered an unfavorable personnel action. So, too, has someone who is placed on administrative leave and then removed from her position or given the formal option between accepting a new position and resigning. But being placed on paid administrative leave, without more, is not an unfavorable personnel action in this court.
Plaintiff argues that by the time she was placed on administrative leave, Ms. Agurs had already completed her investigation into plaintiff and plaintiff’s subsequent termination was therefore a foregone conclusion. The exhibits plaintiff attaches to her opposition brief, however, show the opposite.
Plaintiff nevertheless testified that when she left the office on Dec. 27, 2019, to begin her period of administrative leave, Ms. Bouairi relayed her subjective belief that defendant would “fire [plaintiff] on Monday.” Accepting this version of events as true, the exchange merely shows that Ms. Bouairi—who explicitly did not make personnel decisions regarding plaintiff—informally encouraged plaintiff to resign without any imprimatur of official action. Critically, plaintiff’s version of events shows that Ms. Bouairi made that suggestion to plaintiff before defendant removed plaintiff from her position, terminated her or otherwise took any action that could be considered adverse.
Because “placing an employee on paid administrative leave does not, in and of itself, constitute a material adverse action for purposes of a retaliation claim,” plaintiff has failed to carry her burden of proof with respect to the “unfavorable personnel action” prong of her prima facie case. The fact that defendant rejected plaintiff’s later attempts to rescind her resignation does not change the outcome.
Causation
To make a prima facie showing that a plaintiff’s protected activity was a contributing factor in a defendant’s unfavorable personnel action, a plaintiff must point to evidence of actual causation between the protected activity and the adverse action. Even assuming, for the sake of argument, that plaintiff suffered an unfavorable personnel action, she nonetheless fails to make a showing of causation.
Plaintiff responds that even if the investigation did not commence in response to her protected activity, it gained momentum and reached its ultimate conclusion only after she threatened to appeal Ms. Agurs’s findings regarding C.A. Plaintiff offers no evidence that she made this threat to anyone other than Ms. Bouairi and there is no evidence that Ms. Bouairi relayed this message to Ms. Agurs or anyone else. Nor is there any evidence in the record that Ms. Bouairi herself had any influence over Ms. Agurs’s investigation. Additionally, there is no dispute that plaintiff’s threats of escalation do not themselves constitute protected activity.
Finally, even assuming plaintiff can create a prima facie case for causation, defendant has responded with clear and convincing evidence that plaintiff’s complaints were not the “but for” cause of defendant’s decision to place plaintiff on paid administrative leave.
Defendant’s motion for summary judgment granted.
Kashif v. PNC Bank N.A., Case No. 1-20-cv-01118, Nov. 29, 2021. EDVA at Alexandria (Nachmanoff). VLW 021-3-529. 13 pp.
