Labor & Employment

The Cat’s Paw

AGNÈS MARKARIAN SULLIVAN Pasadena attorney litigation
By Agnès Markarian Sullivan -

The “cat’s paw” is a phrase derived from 17thcentury poet Jean de La Fontaine’s fable, “The Monkey and the Cat”, referring to one used unwittingly by another to accomplish his own purposes.  In the fable, a monkey convinces an unwitting cat to pull chestnuts from a hot fire.   As the cat scoops the chestnuts from the fire one by one, burning his paw in the process, the monkey gobbles them up, leaving none for the cat.

The phrase has also become a legal doctrine referring to a situation where a company relies on the recommendations of a biased supervisor when taking adverse action against an employee.  As that theory applies to employment law, it would hold the employer legally liable for discrimination in the workplace by a supervisor who does not actually  make employment decisions, but influences one who does.

All federal circuits have adopted some form of “cat’s paw” liability.  Unfortunately, there is no uniformity, as courts have a applied a vast spectrum of standards for establishing employer liability.

The Ninth Circuit applies a loose standard, holding that even though a manager is not the ultimate decisionmaker, that manager’s retaliatory motive may be imputed to the employer if the manger was involved in the adverse employment decision.  Bergene v. Salt River Project Agricultural Improvement and Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001); see also Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007).

However, other circuits have more stringent standards for holding the employer liable.  The Seventh Circuit has a very narrow interpretation of the theory.  The Court recently found in Staub v. Proctor Hospital, 560 F. 3d 647 (7th Cir. 2009) that in order to find the employer liable, the biased supervisor must exert “singular influence” over the ultimate decisionmaker.

Staub is the case of a fired hospital worker who claims he lost his job over his service in the US Army Reserve.  An angiography technologist at Proctor Hospital in Illinois, Staub brought an action under the Uniformed Services Employment and Reemployment Rights Act (USERRA), claiming the reasons given for his termination were a pretext for discrimination based on his association with the military.

As a veteran member of the United States Army Reserve, Staub spent the majority of his time in civilian world.  When he notified his supervisor of his Army drill and training obligations, the supervisor refused to accommodate his schedule, referring to Staub’s military duties as “bullshit.”

Deploying the “cat’s paw” theory, Staub sought to attribute his supervisor’s animus to the director of human resources who terminated him, and therefore the hospital.  Staub maintained that his supervisor fed false information to the human resources official;  that the supervisor was motivated to do this because he was a member of the Army Reserves; and that the human resources official relied on this false information in deciding to terminate him. The jury found Staub’s version of events convincing, returning a verdict in his favor in the amount of $57,640.

On appeal, Proctor Hospital argued that the district court mishandled the “cat’s paw” theory.  The Appellate Court for the Seventh District agreed, ruling that prior to giving the jury instructions regarding the  theory, the district court should have first determined whether a reasonable jury could find “singular influence” on the evidence presented. Since there was not sufficient evidence to support such a determination, the appellate court felt that evidence of animus by the non-decisionmaker should not have been admitted.

The case has generated a significant amount of interest; so much so that the uncertainty about the application of the “cat’s paw” theory may soon be remedied.

In the fall, the Supreme Court will hear oral arguments in the fired Army reservist’s appeal from the Seventh Circuit decision.  At the urging of the Obama administration that the Court use the Staub case to answer the question of employer liability, the Court granted certiorari and is finally set to settle the question.

What does this mean for employers and employees?  Will the Court adopt the Seventh Circuit’s narrow interpretation of the “cat’s paw” doctrine?

Regardless of the Supreme Court’s decision in the fall, employers should protect themselves by requiring that the person with the authority to make adverse employment decisions conduct an independent investigation before taking adverse action against an employee.

1 Comment

  1. I love the part about “[The candidate is] inquisitive enough to take advice from many conflicting perspectives, wise enough come to their own conclusion, and have the character to convince others that what they propose is the right thing to do.”

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