The “cat’s paw” theory of liability in employment discrimination cases received much attention earlier this year, when the United States Supreme Court approved its use in a case under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The Court held in Staub v. Proctor Hosp., ___ U.S. ___, 131 S.Ct. 1186 (Mar. 1, 2011), that 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.*
While the “cat’s paw’ theory is viable in employment discrimination cases, it is important to understand how the concept of proximate cause may limit its application. A recent decision by the Eleventh Circuit Court of Appeals illustrates this limitation.
The plaintiff in Brooks v. Hyundai Motor Manufacturing Alabama, LLC, Case No. 10-14700 (11th Cir., October 20, 2011) (unpublished) had a team leader, Gunn, who allegedly spoke to her with exasperation and said “you black folks” or “nigger.” It was this racial animus that Brooks claimed led to her termination.
Brooks was fired for leaving her shift without the permission of a member of management, as company policy required. Brooks claimed that Gunn, her team leader, gave her permission to leave her shift early. But Gunn was not a member of management.
Gunn’s version of events was different. He claimed that he allowed Brooks only to go to “medical” to be excused, and that he told her if she left without going to medical, she would be deemed to have left without authorization. At the end of the shift, Gunn reported to manager Akers that Brooks had left without authorization.
Ultimately two human resources employees, Swegman and Kimble, investigated the matter and made the decision to terminate Brooks. Brooks did not claim that Swegman and Kimble harbored any racial animus.
The question that the court addressed was whether Gunn’s alleged racial animus influenced the decision, such that the company could be held liable under a “cat’s paw” theory.
Brooks argued that, absent Gunn’s actions, management may not have noticed plaintiff’s violations. Thus, according to Brooks, Gunn’s actions, and the racial animus that motivated them, influenced the termination decision, and the company could therefore be held liable under a “cat’s paw” theory.
But the court rejected this theory on the grounds that Swegman and Kimble determined, apart from anything that Gunn said, that terminating Brooks was appropriate. Indeed, the company’s policy was clear: Because Gunn was not a member of management, he could not have validly given permission for Brooks to leave her shift early.
In support of its ruling, the court cited to the following language of Staub:
But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.
Staub, 131 S.Ct. at 1193 (emphasis added).
In other words, if the employer’s independent investigation determines that the adverse action (here, the termination decision) is justified, apart from the biased supervisor’s recommendation, then the “cat’s paw” theory does not apply. Under such circumstances, the mere fact that the biased supervisor made a recommendation to terminate the employee is insufficient to impose liability on the employer. Although the recommendation may have triggered a chain of events that ultimately caused the employee’s termination, the employer’s independent investigation ensures that the biased recommendation is not deemed the proximate (i.e. the “legal”) cause of the decision.
* As noted by the Court, the term “cat’s paw” derives from an Aesop’s fable that was put into verse by La Fontaine in 1679. In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing. In the employment discrimination context, the discriminator is the monkey who induces the decision-maker (the cat) to carry out his discriminatory purposes.