• Employers Beware of the "Cat's Paw:" Discriminatory Animus within the Chain of Command
  • March 17, 2011 | Author: Melissa Segarra Zinkil
  • Law Firm: Akerman Senterfitt - West Palm Beach Office
  • In the context of employment discrimination law, the term "cat's paw" is used in reference to cases in which an employee seeks to hold his or her employer liable for the discriminatory animus of a supervisor who was not charged with making the ultimate employment decision affecting the employee. The term "cat's paw" derives from the Aesop's fable, "The Monkey and The Cat." In the fable, a cat is induced by a monkey's flattery to pull roasting chestnuts from a fire for the monkey and the cat to share, the cat's paws naturally being far more adept for this purpose. After the cat has completed her task, burning her paws in the process, she finds that the monkey has eaten every last chestnut leaving her with nothing to eat. The apparent moral of the story¬†-- flattery may be but a pretext.

    In an opinion released on March 1, 2011, the Supreme Court considered the circumstances under which an employer can be held liable under a "cat's paw" theory and ultimately found that where a supervisor performs an act motivated by discriminatory animus that is intended by the supervisor to cause and does ultimately cause an adverse employment action, liability will lie even if the ultimate decision maker was not personally motivated by discrimination. While the Court's decision was rendered under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), the rationale may easily be applied to cases brought under Title VII of the Civil Rights Act of 1964.

    In Staub v. Proctor Hospital, 562 U.S. -- (2011), Staub, a member of the United States Army Reserve, sued his employer, Proctor Hospital, under USERRA "claiming that his discharge was motivated by hostility to his obligations as a military reservist." Staub was terminated by the Vice President of Human Resources ("V.P.") after she received complaints about Staub and reviewed his personnel file. Staub's personnel file contained disciplinary write-ups for violations of company policy, including Staub's absence from his work area without authorization and otherwise being "unavailable." Staub claimed that the supervisors who wrote him up acted out of hostility toward his military service. While the V.P. had no discriminatory animus toward Staub or his military service, the V.P. nonetheless based her decision to terminate Staub, at least in part, on the write-ups in his file.

    While a jury rendered a verdict in favor of Staub, the Seventh Circuit reversed finding that Proctor Hospital was entitled to judgment as a matter of law as Staub failed to show that the decision made by the V.P. was the product of her "blind reliance" on the biased actions of Staub's supervisors. The Supreme Court reversed the Seventh Circuit's judgment.

    Proctor Hospital argued before the Supreme Court that an employer has no liability under USERRA "unless the de facto decision maker (the technical decision maker or the agent for whom he is the 'cat's paw') is motivated by discriminatory animus." The Court disagreed, stating:

    "Animus and responsibility for the adverse action can both be attributed to the earlier agent (here Staub's supervisors) if the adverse action is the intended consequence of that agent's discriminatory conduct."

    "Proctor [Hospital]'s view would have the improbable consequence that if an employer isolates a personnel official from an employee's supervisors, vests the decision to take adverse employment actions in that official, and asks that official to review the employee's personnel file before taking the adverse action, than the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action."

    The Court likewise declined to recognize a rule pursuant which an employer's conduct of an independent investigation, coupled with rejection of the employee's allegations of discriminatory animus, can negate the effect of the prior discrimination. The Court only went so far as to state that if an "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."

    The "cat's paw" liability is an unwary trap for employers. Regretfully, the Court's decision in Staub v. Proctor Hospital provides little, if any, guidance for employers as to how to avoid such liability. In the wake of this decision, employers should be hyper-vigilant in their investigations and ensure that adverse employment actions are taken only after an independent, objective evaluation of all factors. This may require that employers review prior discipline imposed and closely scrutinize the reasons given by supervisors for the proposed employment action.