Adopting the so-called “cat’s paw” theory1, the US Supreme Court recently held that an employer may be held liable for employment discrimination based on the discriminatory motivation of an employee who influenced, but did not make, the ultimate adverse employment decision. Staub v. Proctor Hospital, 2011 WL 691244 (US March 1, 2011).
Vincent Staub worked as a technician for Proctor Hospital until 2004, when he was fired. The Court described the facts viewed in the light most favorable to him. While employed by Proctor, Staub was a member of the US Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks a year. Both Janice Mulally, Staub’s immediate supervisor, and Michael Korenchuk, Mulally’s supervisor, were hostile to Staub’s military obligations. Mulally scheduled Staub for additional shifts without notice so that he would “pa[y] back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves.” She also informed Staub’s co-worker, Leslie Sweborg, that Staub’s “military duty had been a strain on th[e] department,” and asked Sweborg to help her “get rid of him.” Korenchuk referred to Staub’s military obligations as “a b[u]nch of smoking and joking and [a] waste of taxpayers[’] money.” He was also aware that Mulally was “out to get” Staub.
In January 2004, Mulally issued Staub a “Corrective Action” disciplinary warning for purportedly violating a company rule requiring him to stay in his work area whenever he was not working with a patient. The Corrective Action included a directive requiring Staub to report to Mulally or Korenchuk “‘when [he] ha[d] no patients and [the angio] cases [we]re complete[d].’” According to Staub, Mulally’s justification for the Corrective Action was false for two reasons: First, the company rule invoked by Mulally did not exist; and second, even if it did, Staub did not violate it.
On April 2, 2004, Angie Day, Staub’s co-worker, complained to Linda Buck, Proctor’s vice president of human resources, and Garrett McGowan, Proctor’s chief operating officer, about Staub’s frequent unavailability and abruptness. McGowan directed Korenchuk and Buck to create a plan that would solve Staub’s “availability problems.” But three weeks later, before they had time to do so, Korenchuk informed Buck that Staub had left his desk without informing a supervisor, in violation of the January Corrective Action. Staub contended that this accusation was false: he had left Korenchuk a voice-mail notification that he was leaving his desk. Buck relied on Korenchuk’s accusation, however, and after reviewing Staub’s personnel file, she decided to fire him. The termination notice stated that Staub had ignored the directive issued in the January 2004 Corrective Action. Staub filed an internal grievance to contest the discharge, but Buck denied the grievance.
The Underlying Lawsuit
Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), claiming that his discharge was motivated by hostility to his obligations as a military reservist. His contention was not that Buck had any such hostility but that Mulally and Korenchuk did, and that their actions influenced Buck’s ultimate employment decision. After a jury found for Staub, the US Court of Appeals for the Seventh Circuit reversed.
The Seventh Circuit observed that Staub had brought a “cat’s paw case,” meaning that he sought to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision. It explained that under Seventh Circuit precedent, a “cat’s paw” case could not succeed unless the non-decisionmaker exercised such “singular influence” over the decisionmaker that the decision to terminate was the product of “blind reliance.” Because the undisputed evidence established that Buck was not wholly dependent on the advice of Korenchuk and Mulally, the appellate court held that Proctor was entitled to judgment. The Supreme Court agreed to review the case.
The Supreme Court’s Analysis
USERRA provides in pertinent part as follows:
A person who is a member of … or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, … or obligation…
An employer shall be considered to have engaged in actions prohibited … under subsection (a), if the person’s membership … is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.
The Court noted that USERRA is very similar to Title VII, which prohibits employment discrimination “because of … race, color, religion, sex, or national origin” and states that such discrimination is established when one of those factors “was a motivating factor for any employment practice, even though other factors also motivated the practice.”
According to Justice Antonin Scalia, who authored the opinion, the “central difficulty” in the case was construing the phrase “motivating factor” in the employer’s action:
When the company official who makes the decision to take an adverse employment action is personally acting out of hostility to the employee’s membership in or obligation to a uniformed service, a motivating factor obviously exists. The problem we confront arises when that official has no discriminatory animus but is influenced by previous company action that is the product of a like animus in someone else.
Proctor argued that because Buck conducted an independent review of the personnel file and made the decision to terminate Staub, the hospital could not be liable for discrimination. The Court dismissed this argument as follows:
An employer’s authority to reward, punish, or dismiss is often allocated among multiple agents. The one who makes the ultimate decision does so on the basis of performance assessments by other supervisors. Proctor’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, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action. That seems to us an implausible meaning of the text, and one that is not compelled by its words.
Proctor then argued that Buck’s independent investigation into Staub’s allegations of discrimination in the grievance process insulated it from liability. Applying principles of tort and contract law, the Court declined to adopt such a hard-and-fast rule, holding that requiring the biased supervisor’s action to be a causal factor of the ultimate employment action incorporates the traditional tort-law concept of proximate cause. According to the Court, “if the 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.” 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.”
The Court therefore held 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.” (emphasis added). The Court expressed no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.
Applying its analysis to the facts of the case, the Court reversed the Seventh Circuit’s judgment. Both Mulally and Korenchuk were acting within the scope of their employment when they took the actions that allegedly caused Buck to fire Staub. There was evidence that Mulally’s and Korenchuk’s actions were motivated by hostility toward Staub’s military obligations. There was also evidence that Mulally’s and Korenchuk’s actions were causal factors underlying Buck’s decision to fire Staub: Buck’s termination notice expressly stated that Staub was terminated because he had “ignored” the directive in the Corrective Action. Finally, there was evidence that both Mulally and Korenchuk had the specific intent to cause Staub to be terminated. Mulally stated she was trying to “get rid of ” Staub, and Korenchuk was aware that Mulally was “out to get” Staub. Moreover, Korenchuk informed Buck, Proctor’s personnel officer responsible for terminating employees, of Staub’s alleged noncompliance with Mulally’s Corrective Action, and Buck fired Staub immediately thereafter.
Although the Staub case arose under USERRA, the Supreme Court’s discussion of the similarity between that law and Title VII insures that the “cat’s paw” theory will be applicable in virtually every type of discrimination litigation. The case will likely embolden the plaintiffs’ bar to search for evidence of discriminatory conduct by other supervisors and perhaps co-workers who were not the ultimate decisionmaker. It is also likely that there will be more challenges to the history and/or investigations leading to the adverse employment action to test whether the decisionmaker may have unwittingly been influenced by any such discriminatory conduct, making it more important than ever that employers vet disciplinary actions and especially termination decisions very carefully.