The Ninth Circuit already had recognized “cat’s paw” liability—the idea that employers can be liable for actions triggered by malicious managers, even if the final decision-maker is unaware of illegal motives—when the Supreme Court endorsed it in 2011. With a few tweaks, the doctrine has continued to thrive since.
This article by TELG former principal Tom Harrington (Ret.) and TELG managing principal R. Scott Oswald was published by Westlaw Journal Employment on May 12, 2015.
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To demonstrate a prima facie case of retaliation, an employee must show that:
The burden on plaintiffs is not intended to be onerous, and mere circumstantial evidence can be sufficient. See, e.g., Tex. Dep’t of Cmty. Affairs v. Burdine, 101 S. Ct. 1089, 253 (1981); Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005).
But before a fact finder can infer from circumstantial evidence that an employee’s protected activity caused an adverse employment action, the employee must produce evidence that the employer was aware of her protected activity.
This often-overlooked requirement is spelled out in the jurisprudence that has developed under the False Claims Act’s anti-retaliation provision, 31 U.S.C. § 3730(h), and has been addressed by an idea called the “cat’s paw” theory, which courts have applied to discrimination and retaliation claims.
Under the False Claims Act, courts have broken out the issue of the employer’s knowledge as a discrete element of the prima facie case:
United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1269 (9th Cir. 1996); see also Wichansky v. Zowine, No. CV-13-01208, 2014 WL 289924 (D. Ariz. Jan. 24, 2014).
The cat’s paw theory holds that an employer should be liable for adverse employment actions it takes at the behest of, or instigation of, a non-decision maker when the action is motivated by the non-decision-maker’s unlawful discriminatory or retaliatory animus.
The cat’s paw theory takes its name from an ancient fable in which a monkey dupes a cat into retrieving roasting chestnuts from a fire, promising the cat a share of the take. The monkey gobbles up all the chestnuts as the cat retrieves them and leaves the cat nothing but a burnt paw to show for his efforts.
Courts have applied the moral of the story to employment law, realizing there are times where an innocent and unwitting party (a managerial decision-maker) is manipulated by a third party (a co-worker or other managerial non-decision-maker) to carry out an illegal act. In such a situation, an employer can face the same punishment it would face if the decision maker had direct knowledge of an employee’s protected activity and acted with illegal retaliatory animus.
In Poland v. Chertoff, 494 F.3d 1174 (9th Cir. 2007)-the 9th Circuit’s seminal case on the cat’s paw theory – James Poland, a senior employee with U.S. Customs and Border Protection, alleged that his supervisor, Gary Hillberry, retaliated against him for filing a charge of age discrimination, and did so by causing the agency to initiate an administrative inquiry which led to Poland’s constructive discharge.
Poland alleged that after learning that he had filed a charge of discrimination, Hillberry requested an administrative review of Poland’s interactions with subordinates. During the course of the agency’s inquiry, Hillberry provided the inquiry panel with a list of 21 witnesses without any input from Poland. Hillberry also provided the panel with notes on Poland’s performance taken by another supervisor named Pamela Ewing. The court observed that Ewing’s notetaking increased dramatically after Poland’s protected activity.
The 9th Circuit found that Hillberry hijacked the agency’s decision-making process and ruled that:
[I]f a subordinate, in response to a plaintiff’s protected activity, sets in motion a proceeding by an independent decision maker that leads to an adverse employment action, the subordinate’s bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decision-making process.
Poland, 494 F.3d at 1182. Two years after Poland, the Supreme Court examined the application of the cat’s paw theory to the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301-4335, in Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011).
Vincent E. Staub, an angiography technologist, alleged that his employer terminated him because of his membership in the U.S. Army Reserve. After Staub prevailed at a jury trial, the 7th Circuit found that the employer was entitled to judgment as a matter of law, and Staub appealed to the Supreme Court.
As a reservist, Staub had to attend drill one weekend per month and train full time for two to three weeks per year. Staub’s first- and second-line supervisors were hostile to his military obligations. For example, they scheduled him for additional shifts without notice so he would “pa[y] back the department for everyone else having to bend over backward to cover [his] schedule for the Reserves.” Staub, 131 S. Ct. at 1189 (alteration in original; quotations and internal citation omitted).
Staub’s first-line supervisor also told one of Staub’s co-workers that Staub’s “military duty had been a strain on th[e] department,” and asked the co-worker for help to get rid of him. Id. (alteration in original; quotations and internal citation omitted). Staub’s secondline supervisor referred to Staub’s military obligations as “a [b]unch of smoking and joking and [a] waste of taxpayers[‘] money.” Id. (alteration in original; quotations and internal citation omitted).
Staub’s immediate supervisor issued him a corrective-action warning for allegedly violating a company rule requiring him to stay in his work area when not working with a patient. The corrective action required Staub to report to his supervisor after completing his work. Staub’s second-line supervisor reported to his immediate supervisor that Staub had violated the corrective-action warning, which ultimately resulted in the vice president of human resources reviewing Staub’s personnel file and deciding to terminate him. Staub grieved the decision and alleged that the underlying allegations were fabricated because of his immediate managers’ discriminatory animus.
The Supreme Court observed that the company official who decided to terminate Staub did not harbor personal hostility toward Staub’s military obligation. But the court ultimately found that the decision maker’s impartiality was marred by the lower level managers’ discriminatory animus and their influence over the decision-making process. Thus, the biased lower managers’ knowledge and animus was imputed to the decision maker and then to the employer, enabling Staub to establish a viable claim under USERRA.
Three weeks after the Supreme Court issued its opinion in Staub, the 9th Circuit refined its jurisprudence regarding the cat’s paw theory in United States ex rel. Cafasso v. General Dynamics C4 Systems Inc., 637 F.3d 1047 (9th Cir. 2011).
In Cafasso, the 9th Circuit emphasized that a plaintiff must do more than merely allege the existence of circumstances under which cat’s paw liability could attach, i.e., that others in the organization had knowledge of the protected activity and could have affected the decision maker’s decision-making process. Rather, a plaintiff must adduce evidence that someone with knowledge of her protected and retaliatory animus “set in motion” the adverse employment action. Cafasso, 637 F.3d at 1061.
In the years since Staub, district courts have continued applying the cat’s paw theory to claims of retaliation in which those harboring animus toward an employee are not the decision-makers.
One of the more recent examples is Parker v. State, No. CV-08-656, 2013 WL 3286414 (D. Ariz. June 28, 2013). In Parker, the trial court found that the plaintiff created jury questions by alleging that her supervisor caused a co-worker to file frivolous complaints against her, which then resulted in automatic disciplinary actions.
Courts have consistently found that employers may be liable for the acts of biased non-decision makers who set adverse employment actions in motion. Accordingly, employers should conduct thorough investigations into allegations of wrongdoing.
A proper investigation considers not just the veracity of the allegations in question, but the circumstances of the allegations and the parties involved. Similarly, counsel for plaintiffs should analyze the wider office dynamics and not solely focus on the relationship between an employee and the decision-maker.
