Suspension After Hitting Boss With Vehicle Isn’t Retaliation

By Jay-Anne B. Casuga

The U.S. Postal Service was delivered a win April 10 when the Fifth Circuit upheld the dismissal of a letter carrier’s retaliation claim against the agency ( Cabral v. Brennan , 5th Cir., No. 16-50661, 4/10/17 ).

Javier Cabral, a Mexican-American over the age of 40, was suspended for two days after he hit one of his supervisors with a postal vehicle and was unable to produce a valid driver’s license or occupational license after the incident. Cabral alleged that the suspension was actually in retaliation for his complaints about race, national origin and age discrimination.

The ruling serves as a reminder about the types of employment actions against workers that will be considered “materially adverse” in the Fifth Circuit to support a retaliation claim under Title VII of the 1964 Civil Rights Act. A materially adverse action is one that would dissuade a reasonable employee from making or supporting discrimination charges. The U.S. Court of Appeals for the Fifth Circuit includes federal courts in Louisiana, Mississippi and Texas.

Cabral presented no evidence outside of his own stated conclusions that he experienced emotional or psychological harm as a result of the suspension, the appeals court found. Cabral thus failed to show that his suspension amounted to a materially adverse employment action, the court said.

Attorney Arthur G. Vega of San Antonio, who represented Cabral, disagreed with the court’s ruling.

Cabral presented affidavits and other evidence to raise a factual dispute about whether he was harmed by the suspension, Vega told Bloomberg BNA April 10. That dispute should have been heard by the jury instead of being dismissed on summary judgment, he said.

USPS representatives didn’t immediately respond to Bloomberg BNA’s April 10 request for comment.

Lower Court Initially Denied Dismissal

The federal district court below initially denied the postal service’s motion for summary judgment to dismiss the case.

The U.S. District Court for the Western District of Texas had relied on a U.S. Supreme Court ruling in Burlington Northern & Santa Fe Railway Co. v. White that it interpreted as announcing a rule that all suspensions without pay would be materially adverse actions under Title VII.

The postal service filed a motion for reconsideration, arguing that whether suspensions are materially adverse will depend on the specific circumstances of a case. The district court agreed that it misinterpreted Burlington Northern and subsequently dismissed Cabral’s case.

The Fifth Circuit agreed with the lower court that the circumstances in White and Cabral are distinguishable based on the documentation presented to show harm from an employment action.

Judge Jerry E. Smith wrote the opinion, joined by Judges Catharina Haynes and Robert Junell.

U.S. Attorneys Joseph C. Rodriguez and Robert K. Shaw-Meadow represented the postal service.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at

To contact the editors responsible for this story: Peggy Aulino at; Terence Hyland at; Christopher Opfer at

For More Information

The case is at

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