In March 2011, the United States Supreme Court rendered its decision in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), resolving a split in the lower courts over the reach of the so-called “cat’s paw” theory of liability. The “cat's paw” refers to a situation in which an employer can be held liable based on the discriminatory or retaliatory animus of an employee who influenced, but did not make, the employment decision at issue. In its 8-0 decision, which involved a retaliation claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Court held that “if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Though the Staub decision involved USERRA, it was expected to apply with equal force to Title VII discrimination claims, given the similar statutory language, and to other federal statutes.
To date, the courts of appeals in the First, Second, Fourth, Sixth, Eleventh and District of Columbia circuits have neither followed nor distinguished Staub, though several of the circuits have cited it generally and district courts within these circuits have given it a closer look. The Third, Fifth, Seventh, Eighth, Ninth and Tenth circuits have each issued opinions discussing the decision in Staub, but few have rendered decisions that actually imposed cat’s paw liability against an employer.
Although a clear trend has yet to emerge, some of the cases reviewed for this article focus on two critical areas of analysis: (1) the status of the non-decision maker and whether there is evidence of the non-decision maker’s discriminatory or retaliatory animus; and (2) the circumstances under which an independent investigation following the actions of the biased non-decision maker can defeat liability. A discussion of some of the interesting cases follows.
A. The Non-Decision Maker
Two cases since Staub have held that the cat’s paw theory applies only when the discriminatory or retaliatory animus lies with the plaintiff’s supervisor. For example, in Werner v. Dept. of Homeland Security, 2011 U.S. App. LEXIS 19089 (5th Cir. Sept. 15, 2011), the Court of Appeals for the Fifth Circuit refused to impose liability on an employer where there was no evidence to suggest that the plaintiff’s supervisor acted with or was motivated by racial animus. The plaintiff in Werner was herself a supervisor whose subordinate employees complained about her racially insensitive comments. The complaints led to an investigation and eventually to plaintiff’s demotion. She argued that the complaining subordinate employees were themselves motivated by racial animus towards her. The Fifth Circuit held that even if the subordinates were motivated by racial animus when making their complaints, there was no evidence that the plaintiff’s supervisor had an improper motivation in addressing the complaints and issuing the reprimand that later became part of the reason for her demotion. Interestingly, in a decision by the Fifth Circuit a few months earlier, Gollas v. University of Texas Health Science Ctr., 425 Fed. Appx. 318 (5th Cir. May 12, 2011), the court described the cat’s paw theory as involving animus by a co-worker who later influenced the ultimate decision maker, suggesting that the theory may not be limited to supervisor conduct. The Gollas decision did not turn on the status of the non-decision maker, so it is unclear whether the Fifth Circuit’s pronouncements are in conflict.
In Abdelhadi v. City of New York, 2011 U.S. Dist. LEXIS 85606 (E.D.N.Y. Aug. 3, 2011), the plaintiff was a probationary corrections officer with the Department of Corrections. He argued that he was the target of a terrorism investigation by the New York City Police Department because of ethnic and racial profiling and that because his employer relied upon the results of the biased investigation when deciding to terminate his employment, cat’s paw liability was appropriate. The district court described what it viewed as three limiting principles imposed by the Supreme Court’s decision in Staub: (1) “the supervisor must intend his or her acts to cause the adverse employment action”; (2) the individual accused of bias must be the plaintiff’s supervisor; and (3) the employer is only liable for conduct in the course of the supervisor’s employment or when agency principles would apply to impose liability based on conduct outside the scope of the supervisor’s employment. The Abdelhadi court ultimately concluded that the plaintiff had failed to establish a case for cat’s paw liability because the NYPD officers were not his supervisors, and there was no evidence that the officers intended their report to cause his termination.
Other courts have refused to impose cat’s paw liability where there was no evidence of the non-decision maker’s intent or animus or where there was no evidence the non-decision maker actually influenced the ultimate decision. See, e.g. Diaz v. Tyson Fresh Meats, 643 F.3d 1149 (8th Cir. 2011); Wojtanek v. Dist. No. 8, Int’l. Assoc. of Machinists and Aerospace Workers, 2011 U.S. App. LEXIS 16387 (7th Cir. July 27, 2011); Crowe v. ADT Security Services, 649 F.3d 1189 (10th Cir. 2011). In these cases, fact-sensitive inquiries guided the outcome.
B. Independent Investigation
Before the Supreme Court’s decision in Staub, the courts were split on whether an independent investigation could break the causal link between the biased non-decision maker’s conduct and the adverse employment action. However, in Staub, the Court rejected the notion that a decision maker’s independent investigation should provide an absolute affirmative defense, stating: “Nor do we think the independent investigation somehow relieves the employer of ‘fault.’ The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision.” The Court explained, however, that if the employer’s investigation resulted in an adverse action for reasons unrelated to the supervisor’s original biased action, then the employer would not be liable.
In McKenna v. City of Philadelphia, 2011 U.S. App. LEXIS 17199 (3d Cir. Aug. 17, 2011), the Court of Appeals for the Third Circuit considered whether an intervening investigation insulated the employer from liability. In McKenna, the plaintiff was one of three police officers who alleged that he was retaliated against for complaining about racial tension within his squad. He was vocal about his concerns, raising them with both the squad supervisor and the squad commander, and claimed that he suffered various consequences as a result of his complaints. While on restricted duty, and although he had been specifically told not to do so by the squad commander, the plaintiff was in contact with the supervisor and the commander to once again voice his concern. Disciplinary charges were brought against the plaintiff as a result of the contact, which resulted in a hearing before the Police Board of Inquiry (PBI), a three-member adjudication unit. The parties were represented by counsel at the hearing and testimony was offered by both sides. The plaintiff was found guilty of the charges lodged by the commander and of an additional charge added by the PBI on its own and was subsequently terminated based upon the PBI’s recommendation.
Following Staub, the Third Circuit determined that “proximate cause requires only ‘some direct relation between the injury asserted and the injurious conduct alleged,’ and excludes only those ‘link[s] that are too remote, purely contingent, or indirect.’” The plaintiff established during a jury trial that the commander harbored retaliatory animus toward him and thus, the employer bore the burden of proving that the PBI proceedings severed the relationship between that animus and the plaintiff’s termination by showing that the termination decision was for reasons unrelated to the original biased action. The employer’s downfall, it seems, was its failure to introduce evidence at trial explaining the PBI hearing process or demonstrating what the ultimate decision maker saw or considered when making the termination decision.
In a case decided shortly before the Third Circuit’s decision in McKenna, the District Court for the Western District of Pennsylvania found no cat’s paw liability in Vasbinder v. Shinseki, 2011 U.S. dist. LEXIS 49894 (W.D.Pa. May 10, 2011). The plaintiff in Vasbinder alleged that he was terminated as a result of age discrimination by his supervisor, who he claimed made ageist remarks and also reported plaintiff after finding him asleep on the job. The supervisor’s report led to an investigation that resulted in the plaintiff’s demotion. Acknowledging the potential application of Staub, the court held that, although the investigation conducted was not “particularly rigorous,” it did not raise an inference of age discrimination nor was there evidence that those involved in the decision-making process were motivated by age discrimination. The court also concluded that the supervisor’s ageist remarks were insufficient to create an inference of age discrimination and that their poor relationship was more likely fueled by personal animosity.
In Ordogne v. AAA Texas, 2011 U.S. Dist. LEXIS 86724 (S.D.Tx. Aug. 5, 2011), the District Court for the Southern District of Texas entered summary judgment in favor of the employer on evidence that the employer conducted an independent investigation that was untainted by the supervisor’s retaliatory conduct. The plaintiff in Ordogne complained to human resources that her supervisor had discriminated against her and was subsequently assigned a new supervisor. Thereafter, the plaintiff’s now former supervisor uncovered evidence that the plaintiff had forged an insured’s name to an insurance application and bound the policy without receiving payment, and reported the conduct, which was in violation of several company policies, to the plaintiff’s new supervisor. Following an investigation, which included some admissions by the plaintiff, the plaintiff was terminated. There was clear evidence of the former supervisor’s retaliatory motive. Nonetheless, the court refused to impose liability under the cat’s paw theory because there was no evidence that the decision to terminate the plaintiff was influenced by the former supervisor. Though the supervisor’s report initiated the investigation, the decision makers justified their decision entirely apart from the supervisor’s report. The same court reached a different conclusion in Baldwin v. Holder, 2011 U.S. Dist. LEXIS 56372 (S.D.Tx. May 26, 2011), on evidence that the biased supervisor drafted the recommendation to investigate along with an investigation report, recommended the plaintiff’s termination, and drafted proposed findings to be provided to the plaintiff that were substantially adopted by the ultimate decision maker.
The foregoing represents just a small sampling of the federal cases decided since Staub. While it may still be too early to tell, it seems that at least the federal courts are reluctant to impose cat’s paw liability.
Susan L. Nardone, Director of Gibbons, primarily represents employers in defense of discrimination and harassment claims brought under both federal and state laws. Ms. Nardone also provides counseling to employers on all aspects of the employer-employee relationship.