CAT’S PAW LIABILITY: DON’T GET BURNED!
Last week, the Supreme Court of the United States released an important decision addressing the “cat’s paw” theory of liability in employment discrimination cases that will have far-reaching implications. Under the cat’s paw theory, a plaintiff can hold an employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision, but, nonetheless, influenced the decision. The term “cat’s paw” derives from an ancient fable in which a monkey persuades a cat to extract a roasting chestnut from a fire. The cat retrieves the chestnut but burns his paw in the process, allowing the monkey to take off with the chestnut while the cat has nothing to show for his labor.
Courts have been inconsistent in their application of this theory. Specifically, courts have been split over how much influence the non-decision-making discriminator must have over the decisionmaker for the plaintiff to prevail. In Staub v. Proctor Hospital, the Supreme Court finally addressed the use of the cat’s paw theory to prove discrimination, but, unfortunately, the Supreme Court has left employers with many unanswered questions.
In Staub, the plaintiff was a member of the United States Army Reserve, which meant that he had to attend drill one weekend a month and training for two to three weeks per year. According to the evidence developed at trial, the plaintiff’s supervisor, Janice Mulally, and Mulally’s supervisor, Michael Korenchuk, were both hostile to the plaintiff’s military commitments. In January 2004, Mulally issued the plaintiff a disciplinary warning for violating a work-rule requiring the plaintiff to stay in his work area when not assisting a patient. Other complaints were also made to the human resources director about the plaintiff, and the human resources director and Korenchuk worked on an improvement plan for the plaintiff. However, before the plan was implemented, Korenchuk informed the human resources director that the plaintiff had violated the prior disciplinary warning by failing to remain in his work area. The plaintiff alleged that Korenchuk’s accusation was false. Relying on the accusation of Korenchuk and, after reviewing the plaintiff’s personnel file, the human resources director decided to terminate the plaintiff.
The plaintiff alleged that his discharge was in violation of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), which prohibits discrimination against employees serving in a uniformed service, such as the Army Reserve. Specifically, USERRA provides that an employer is considered to have engaged in prohibited discrimination if the employee’s membership in the uniformed service “is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.”
Although the human resources director, who made the ultimate decision to discharge the plaintiff, had no antimilitary animus, the plaintiff used the cat’s paw theory at trial to show that his military service was a motivating factor in his discharge. He prevailed at trial. The appellate court then reversed, finding that the plaintiff had not met his burden under the cat’s paw theory because the human resources director had not relied exclusively on the advice of Mulally and Korenchuk when discharging the plaintiff, but, instead, had conducted some independent review of the facts.
The Supreme Court reversed and ruled in favor of the plaintiff. The Supreme Court articulated the following test for proving the cat’s paw theory: “if a supervisor performs an act motivated by antimilitary 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.”
The Supreme Court did recognize that there are times when an employer’s independent review may shield the employer from liability. For example, if the employer’s independent investigation results in a discharge for reasons unrelated to the supervisor’s biased action, then the employer would not be liable. However, the employer has the burden to establish that. In addition, even if the employer conducts an independent review, it is possible that the supervisor’s biased action may remain a causal factor in the discharge, and, thus, the employer would still be subject to liability.
Unfortunately, the Supreme Court declined to adopt a hard-and-fast rule regarding the type of independent review that would shield an employer from liability under the cat’s paw theory. Thus, the law on this area will be developed over the next several years in the lower courts which will likely lead to varying results. Because of this, it is difficult to predict what level of review a court will find to be sufficient to shield an employer from liability. However, the more thorough and independent the review is, the better chance the employer has of proving that a biased supervisor’s actions were not the proximate cause of the adverse employment action.
The Supreme Court’s decision in Staub will have far-reaching implications. In addition to its application to USERRA, the decision will certainly apply to other employment-law statutes. As the Supreme Court recognized, USERRA is very similar to Title VII, which prohibits employment discrimination because of race, color, religion, sex, and national origin. Thus, this test will likely apply in Title VII actions. In addition, state courts will likely look to the Staub decision for guidance in applying the cat’s paw theory to state-law claims.