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High Court to hear arguments in USERRA “cat’s paw” case

The US Supreme Court is scheduled to hear arguments on November 2, 2010, in Staub v Proctor Hospital (Dkt No 09-400), a USERRA case in which a US Army reservist relied on the “cat’s paw” theory of liability. A jury found in favor of the reservist on his claim that he was discharged from his position as an angiography technologist at a hospital due to anti-military animus. The hospital asserted that he was fired for insubordination. Although the vice president of human resources, who made the discharge decision, did not harbor any anti-military animus, the reservist argued that such animus should be imputed to the employer because the vice president’s decision was influenced by a supervisor who did harbor anti-military animus.

On appeal, however, the Seventh Circuit (92 EPD ¶43,723) found the cat’s paw theory was not applicable and reversed the district court’s $57,640 judgment for the reservist. In its decision, the Seventh Circuit defined, for the first time, the division of labor between the jury and court when a “cat’s paw” theory is invoked: 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. Here, the reservist, whose personnel file documented availability, attitude, and communication problems predating his military-based issues, “didn’t have the safety net of a good reputation,” the Seventh Circuit noted. Accordingly, the Seventh Circuit found that the vice president made her decision free of any military-based animus and the reservist’s track record supported her action.

The Seventh Circuit’s decision was issued on March 25, 2009. The reservist filed his petition for certiorari on July 22, 2009. The hospital filed its opposition brief on October 5 and the reservist filed his reply brief on October 16, 2009. The Supreme Court issued an invitation to the Solicitor General to file a brief on November 9, 2009, and the Solicitor General submitted a brief expressing the federal government’s view that certiorari should be granted on March 16, 2010. The High Court granted certiorari on April 19, 2010. New Associate Justice Elena Kagan, formerly the US Solicitor General, recused herself from this case on September 7, 2010.

The question before the Court is: “In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?”