CAT’S PAW REDUX: STAUB V. PROCTOR HOSPITAL HITS OHIO
In March of this year, I wrote about a recent decision from the United States Supreme Court – Staub v. Proctor Hospital – addressing the “cat’s paw” theory of liability in employment discrimination cases. 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. As I noted in the March article, the Court’s decision will have far-reaching implications, and we have already started to see evidence of this.
Recently, a district court in Ohio applied the cat’s paw theory to a case in which the plaintiffs alleged that they were discharged in retaliation for taking protected leave under the Family and Medical Leave Act (“FMLA”). In Blount v. Ohio Bell Telephone Co., No. 1:10-cv-01439, 2011 WL 867551 (N.D. Ohio Mar. 10, 2011), two former employees of Ohio Bell Telephone Company alleged that they had been discharged in retaliation for taking FMLA leave and because of their age. Both of the plaintiffs had failed to meet the performance standards of the company, but they alleged that they were treated differently than other employees because of their use of FMLA leave.
The plaintiffs were directly supervised by a coach manager. The coach manager reported to a center sales manager, who in turn reported to a general manager. During the course of discovery, one of the coach managers testified that he attended meetings in which center sales managers “specifically discussed targeting individuals who took FMLA leave with increased punishment and that individuals who took FMLA leave were progressed through the disciplinary chain much more quickly than were individuals who did not take FMLA leave.” The coach manager also stated that, although all the employees who failed to meet their job expectations were disciplined, those employees who took FMLA leave were purposely progressed more quickly through the discipline process than those who did not take FMLA leave.
This proffer of direct evidence of discrimination was obviously damaging to the employer’s case. The company responded that this evidence was not relevant to the plaintiffs’ claims because the center sales manager did not have the authority to discipline and discharge employees. There was some dispute between the parties as to which supervisors had the authority to make disciplinary decisions and terminate employment.
The court, however, ruled that even if the center sales manager did not have the authority to discipline or discharge employees, his animus towards employees taking FMLA leave could be inferred up the chain of command where it “had the effect of coloring the various adverse employment actions” in the case. The court cited the Supreme Court’s decision in Staub to support this proposition.
This case presents a classic example of “cat’s paw” liability that trial courts will grapple with more frequently in light of the Supreme Court’s March ruling. Although this decision does not address the issue, employers should remember that the Supreme Court did recognize that there are times when an employer’s independent review may shield the employer from liability even if the employee can establish animus by a supervisor who is a link in the chain of command leading to the discharge decision. 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 defense at trial. 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 and that issue will continue to be addressed and refined by the courts for years to come.