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Beware the cat’s paw

January 6th, 2015  |  Kathy Kapusta

In March 2011, the U.S. Supreme Court, in Staub v. Proctor Hospital, breathed life into what’s known as the “cat’s paw” theory of liability when it held that if a supervisor performs an act motivated by discriminatory animus that is intended by the supervisor to cause an adverse employment action and is a proximate cause of the ultimate employment action (carried out by someone else, with no evident discriminatory intent), then the employer is liable. In that case, the High Court overruled a decision by the Seventh Circuit, which held that a court cannot admit evidence of a nondecisionmaker’s animus unless it has first determined whether a reasonable jury could find the nondecisionmaker exerted a “singular influence” over the ultimate decisionmaker.

Although the Staub case involved a claim under USERRA, the cat’s paw theory has since been advanced by employees with ever increasing popularity. How have the courts responded? A sampling of cases over the past year reveals that employers are still too often relying, without any independent investigation, on their supervisors’ recommendations of adverse action.

Cat’s paw liability. For example, in the following cases, courts have allowed employees to advance their employment discrimination claims under the cat’s paw theory:

  • Reliance on lower-level decisionmaker. A federal district court in Mississippi found fact issues existed as to whether statements by a history professor’s department head, a lower-level decisionmaker, were made with the intent to cause the denial of tenure and a promotion and as to whether he possessed influence or leverage over the provost. Noting evidence that the provost, who delivered the final recommendation to the ultimate decisionmaker, both considered and was influenced by the department head’s statements, the court observed that while the employer argued that the employee’s application was denied for many reasons, the cat’s paw inquiry does not require that the discriminatory act be the only cause of an adverse employment action. Rather, a plaintiff need only create a genuine issue of material fact as to whether the discriminatory act was a proximate cause.
  • No verification. Denying summary judgment on a teacher’s ADA and Rehab Act claims against a school district, a federal district court in Georgia found that the superintendent did nothing to verify information about the teacher provided to him by the school’s administrators. Specifically, he never observed her in her classroom or spoke with her about her interactions with the administrators. Although the employer could have been shielded from liability on her retaliation claims if the superintendent had independently investigated and confirmed the criticisms of the employee, because he did not do so, a jury could reasonably conclude that he was nothing more than a cat’s paw.
  • HR director as cat’s paw. A 56-year-old employee fired after making two timekeeping mistakes could advance her age discrimination claim based on the contention that her supervisor set up the HR director as a cat’s paw to investigate the “falsification” of timekeeping records so that he could replace her with a 36-year-old worker with no experience. The employee argued that after her supervisor failed to convince his superiors that she should be terminated as part of a restructuring initiative, he alerted the HR director to the time record inaccuracies. The director then investigated, allowed the supervisor to be present when she interviewed the employee, confirmed that she submitted two inaccurate time records, and fired her. Observing that it was it unlikely the director would have investigated without the supervisor’s input, a federal court in Wisconsin found a fact issue as to whether the director depended on the supervisor for the basis of her decision and acted as his cat’s paw. 
  • No need to show supervisor drove the decision. A federal district court in Illinois found enough evidence in support of a cat’s paw theory to allow an employee’s race discrimination claims to survive summary judgment. Here, there was evidence that his supervisor suggested to at least one of the ultimate decisionmakers that the employee be laid off. Although the employer argued there was no evidence showing that the supervisor “drove the decision” to terminate the employee’s employment, the court held that was not required. All that was needed was that the employee show the supervisor proximately caused his termination on the basis of race. In other words, if the employee could show his supervisor recommended that he be let go because the employee was African American, he did not also need to establish that the supervisor communicated any alleged prejudice to the actual decisionmakers.
  • Input in RIF selection process. The discriminatory animus of a supervisor who smiled when African-American employees complained of racism and made a comment about getting rid of the “ni**ers” could be imputed to the manager who made the decision to lay off the employees during a reduction in force, a federal district court in Texas ruled, observing the manager relied on the supervisor’s input through the RIF selection process.
  • Decisionmaker sought out supervisor’s input. A probationary employee who was fired two days after allegedly refusing her supervisor’s offer to increase her production numbers in exchange for sexual favors could advance her sexual harassment claim, a federal district court in Alabama ruled, finding a fact issue existed as to whether the supervisor took adverse employment actions against her or at least influenced the plant superintendent’s decision in a manner that could render the company liable. Here, the court found that while the company insisted that the superintendent alone made the termination decision, there was evidence indicating that the superintendent sought out the supervisor’s opinions.
  • Supervisor involved in disciplinary steps. Denying summary judgment on a discharged female employee’s sexual harassment claim, a federal district court in Alabama found that a jury question existed as to whether the decisionmakers relied on her supervisor’s opinion and assistance in making their decision. Not only was the supervisor involved in the disciplinary steps leading up to the discharge, there was evidence showing that the decisionmakers may have delegated decisionmaking power to him. Here, he counseled the employee, her complaint about him led to her written warning, he issued her final warning, and his email about her alleged outburst was what instigated the termination. Thus, he was involved in three of the four disciplinary steps and a jury should determine whether he influenced the final decision based on discriminatory animus.

No cat’s paw. Of course, not all cat’s paw claims have been successful. An employer can defeat the cat’s paw tact by showing that the ultimate decisionmaker conducted an independent investigation or review, as these cases demonstrate:

  • Independent grievance panel. A UPS employee who argued that two supervisors began to “systematically” discipline him when he returned to work after an injury-related absence, and that the timing of this “intense discipline” demonstrated the pretextual nature of his subsequent termination, failed to account for the independent assessment of a regional grievance panel, which upheld his discharge for dishonesty, the Tenth Circuit ruled. Although the employee’s supervisor initiated the process that culminated in his termination, his discharge grievance triggered a review process that “appropriately constrained any improper motive” by his supervisor. The neutral panel acted in accord with the company’s written policies, independently assessed the alleged misconduct, and agreed upon the appropriate discipline.
  • GM investigated. An employee who was discharged by the general manager the day after he informed his supervisor that he would need to undergo back surgery failed to survive summary judgment on his FMLA retaliation claim. Squarely rejecting his assertion that his supervisor’s comment “here we go again,” after the employee hurt his back, should be attributed to the decisionmaker (the GM) because he was a mere “cat’s paw” for the supervisor’s discriminatory animus, a federal court in Alabama found there was no showing that the supervisor’s actions were the proximate cause of the employee’s discharge. Here, the GM conducted an independent investigation and terminated the employee due to a safety violation.

Employer takeaway. In light of Staub, employers must keep in mind that a supervisor’s biased report may remain a causal factor in an adverse employment action even in the face of an independent investigation where the investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified. If, however, the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action, then the employer will not be liable.

Thus, those individuals who make an ultimate employment decision must rely on more than the word of a supervisor or what’s in the employee’s personnel file. They need to conduct an independent investigation to verify that a legitimate nondiscriminatory reason exists before undertaking an adverse job action.