Keefe, Campbell & Associates, LLC

Editor’s comment: This is an important ruling for H.R. folks to follow and understand. Under the “cat’s paw” theory, in order to impute unlawful bias or prejudice from a coworker / supervisor to an employer, an employee must show the adverse employment decision was based solely on biased or prejudiced information from the coworker / supervisor and that the coworker / supervisor exercised singular influence over the employer.

In Vincent E. Staub v. Proctor Hospital, Nos. 08-1316, 08-2255 & 08-2402, (7th Cir. 2010), Plaintiff (employee) sued Defendant (employer) under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. section 4301 et seq. USERRA makes in illegal to deny those in military service employment or retention in employment due to such service. In the present case, the employee was terminated from his position as an angiography technologist. He alleged he was fired because he was a soldier in the U.S. Army Reserves. Further, the employee sought to impute to the employer what he perceived as the “anti-military bias” of his immediate supervisor.

Plaintiff invoked the “cat’s paw” theory in an attempt to show the employer was used as “tool” by the supervisor to accomplish her goal of terminating Plaintiff. The term “cat’s paw” is taken from a fable written by 17th century French poet Jean de La Fontaine entitled “The Monkey and the Cat.” In this fable a hungry, unscrupulous monkey convinces an equally hungry but unsuspecting cat to pull chestnuts from a fire. The cat succeeds but in doing so burns its paws while the monkey eats all the chestnuts.

After the closure of proofs a jury found for Plaintiff. Defendant appealed to the Seventh Circuit. The Circuit Court noted the supervisor disdained Plaintiff’s participation in the military. Motivated in part by this bias, from 2000 through 2003 she engaged in a pattern of conduct designed to rid herself, and the employer, of Plaintiff. Relying in part upon information provided by the biased supervisor, the employer’s Vice-President of Human Resources eventually terminated the employee for insubordination.

However, the Circuit Court also found the evidence insufficient to support a verdict against the employer. The Circuit Court noted under the cat paw’s theory “animus by a non-decision maker is only relevant if she exercised singular influence over the decision maker.” The evidence and testimony presented established the employee was “technically competent” but was also “prone to attitude problems” and “offended numerous others for reasons unrelated to his participation in the Reserves.” The evidence further demonstrated the ultimate decision-maker terminated the employment relationship free of any anti-military bias. Thus, the Circuit Court found the cat’s paw theory was inapplicable as no reasonable jury could determine the supervisor had “singular influence over” the employer. The Circuit Court found “to be a cat’s paw requires more; true to the fable, it requires a blind reliance, the stuff of ‘singular influence’.”

This article was researched and written by Matthew A. Wrigley, J.D. Please direct your thoughts and comments to Matt at mwrigley@keefe-law.com.

Editor’s comment: In 2009, the Democratic Congress passed the Lilly Ledbetter Fair Pay Act. It was signed by President Obama on January 29, 2009 with Ms. Ledbetter present. The Act adds a provision to Title VII, and other discrimination statutes, which allows an employee to file a claim against an employer alleging discrimination 180 days from any payment received in relation to the discriminatory act.

Using as an example a woman discriminated against based on her gender, under the new law, she can now sue up to 180 days after receiving any “discriminatory” paycheck; not just 180 days from the first offense. In other words, if an employer underpays a woman for ten years on the basis of her sex, under the new law, she could sue 180 days anywhere from the first to the last time she received a discriminatory paycheck, even if that last paycheck was 10 years after the initial claimed event of discrimination.

What does this mean for an employer and for you as a risk/human resources manager? First and foremost, it means that truly discriminatory actions will have a much longer window of exposure. This effect is hard to argue with, and we at Keefe, Campbell & Associates feel truly discriminatory acts should be justifiably litigated, and not swept under the rug using a draconian limitation statute. There are some rather unsavory “hidden truths” that this Act may cause though.

The most alarming truth is this change will require employers to defend ambiguous “stale cases”, many of which may be tenuous at best, and completely without merit at worst. Notwithstanding the regular cost of litigating claims that can be 10 years old or more, employers will face dreaded exposure for punitive damages.

And what a boon to the trial lawyers! This Act provides an avenue where a single legal victory against an employer could make it incredibly easy to induce large settlements for similarly situated employees, not to mention former employees who are still receiving benefits. In situations like this, each new litigant can allege a pattern of discrimination. Each such suit becomes easier and cheaper to bring than the last, and harder to defend.

If they haven’t already taken steps to protect themselves, employers and their risk managers should expect to change their hiring, firing, and wage practices to reduce the risk of these claims. If you are paying your employees different levels of pay, make certain you document the reasons well, productivity, seniority, whatever they may be. And remember, the 180 days is effective from the point you last made a “discriminatory” payment, so employers who feel they may have some claims falling within this window, may wish to modify some wage agreements sooner rather than later, in order to get the timeframe running.

We also suggest consideration of implementation of release/resignations at the end of troubled employees’ tenure with your organization. If you need assistance or our draft form, please send a reply. This article was drafted by current paralegal Arik D. Hetue who will soon be joining KC&A as a defense attorney this fall.

Editor’s comment: A causal relationship is not established by the fact one even precedes another. The timing of an employer’s promotion of an employee is generally controlled by vacancies beyond an employer’s control. Therefore, an employee who alleges her non-promotion was retaliatory must produce evidence which demonstrates more than a mere temporal link.

In Hall v. Forest River, Inc., (No. 07-2653 July 30, 2008), a female employee (Plaintiff) was passed over for promotion both before and after she complained to her employer (Defendant) of alleged sexual harassment by a male coworker. Promoted coworkers included those with less seniority than her. Plaintiff filed suit which alleged retaliation under Title VII. The U.S. District Court for the Northern District of Indiana granted judgment as a matter of law in favor of Defendant. It found no legally sufficient evidentiary basis upon which a reasonable jury to find for Plaintiff. Plaintiff appealed.

The U.S. Court of Appeals for the Seventh Circuit (Seventh Circuit) reviewed de novo the District Court’s order. The sole issue on appeal was whether the evidence as a whole when combined with all reasonable inferences permissibly drawn from this evidence was sufficient to allow a reasonable jury to find in favor of Plaintiff.

Success on a retaliatory discharge claim requires sufficient evidence which shows an employee

1) opposed an unlawful employment practice,

2) The employee suffered an adverse employment action, and

3) This adverse action was caused by the employee’s opposition to the unlawful employment practice.

In the present case, the parties agreed Plaintiff met the first two prongs. She complained of alleged sexual harassment by a male coworker and Defendant decided not to promote her. Thus, the question was whether Plaintiff presented sufficient evidence of casual relationship to reach a jury.

The Seventh Circuit noted Plaintiff produced no evidence to show longevity equated to superior qualifications or that Defendant promoted on the basis of seniority. The record indicated the opposite – longevity was not a factor in promotions. The Seventh Circuit also noted federal anti-discrimination laws were not intended to legislate seniority rights where none existed in the contract of employment. It further held an employee must also do more than present her own subjective “self-appraisal” to create a genuine issue of fact. Finally, the Seventh Circuit found “none” of the evidence relied upon by Plaintiff indicated her sexual harassment complaints were related to Defendant’s promotion of her male coworker. Simply put, no evidence was presented which spoke to Defendant’s motivation in promoting. The Seventh Circuit held that in the absence of evidence of pretext or retaliation Plaintiff could not prevail as a matter of law. The Judgment of the District Court was affirmed.

This article was researched and written by Matthew A. Wrigley, J.D. If you have thoughts and comments or need the case citation, please send a reply to mwrigley@keefe-law.com.