Supreme Court Begins New Term with Few Employment Cases

Friday, September 30, 2016

The Supreme Court of the United States will begin its new term on October 3rd with a quiet slate of cases for employers. Among the few employment-related cases set for review include one involving whether the acting general counsel of the NLRB was validly appointed by President Obama under a federal vacancy statute (NLRB v. SW General, Inc.) and another involving the judicial standard of review for enforcing EEOC investigative subpoenas (McLane v. EEOC). Although these cases are not likely to set employers’ hearts afire, it is possible that the Court will add to its docket as it considers other pending petitions for review.

In terms of its composition, the Supreme Court will begin its new term as it ended its last one: with a vacancy. Although President Obama nominated Judge Merrick Garland from the D.C. Circuit Court of Appeals last March to replace Justice Scalia, the Senate has not acted on the nomination. As a result, the eight-member Court continues to risk deadlocking in some cases, as it did last term when considering the constitutionality of compulsory union dues in Friedrichs v. California Teachers Association. In that case – just as it does whenever it deadlocks – the Court affirmed the judgment below, which had held that mandatory “fair share” fees did not violate public employees’ First Amendment rights.

Whether the Court’s composition has played a role in its selection of cases this term is an open question. In this election year, it is also a question that is likely to persist until after November.

Employees Find “Cat’s Paw” Theory to be the Cat’s Meow

Thursday, September 8, 2016

Employees are continuing to find success with the “cat’s paw” theory to prove employment discrimination, evidenced by two recent federal court decisions.

The “cat’s paw” theory references an old Aesop’s fable in which a monkey tricks a cat into doing work for his own benefit: the monkey puts the cat to work pulling chestnuts from a fire, which rewards the monkey with a hot meal, but which rewards the cat with only burnt paws. In the employment law context, the theory holds that an employer may get its paws burnt – i.e. be liable for discrimination – where it is manipulated into taking adverse action against an employee based on information from a supervisor who harbors discriminatory animus towards the employee. The theory, which the Supreme Court addressed in 2011 in a USERRA case, Staub v. Proctor Hospital, therefore gives employees a tool to show that discrimination was a proximate cause for an adverse action—even where the ultimate decision-maker was not aware of a supervisor’s discriminatory intent and the supervisor did not participate in the decision.

For example, in a recent case from the federal district court in Kansas, Canfield v. Rucker, an employee escaped summary judgment on her Title VII discrimination claim where there was conflicting evidence as to whether a superior influenced her termination. The employee had alleged that the superior – who was the assistant secretary of state for the State of Kansas – showed discriminatory animus by telling the employee’s relative that she was being fired for not going to church. The Secretary of State’s Office argued, however, that the assistant secretary had merely rubber-stamped the employee’s termination and that the decision had actually been made by one of the employee’s direct supervisors, who had allegedly conducted an independent investigation into the employee’s conduct and was therefore unbiased. Echoing Staub, the court found that there was sufficient evidence in the record to show that the assistant secretary was a proximate cause for the termination – including evidence that the assistant secretary had discussed the termination with the employee’s supervisor – and rejected the notion that the alleged independent investigation by the supervisor necessarily precluded a cat’s paw claim, particularly where there was a question as to whether the assistant secretary had influenced the termination in some way.

Similarly, the Second Circuit Court of Appeals recently held in Vasquez v. Empress Ambulance Service, Inc. that an employer may be liable under a cat’s paw theory if it negligently gives effect to the retaliatory intent of a non-supervisory co-worker. In this case, the plaintiff filed an internal complaint about sexually graphic text messages that she had received from a co-worker. After the complaint was filed, the co-worker manipulated certain text messages to make it appear as though he and the plaintiff had been involved in a consensual sexual relationship, and he provided the manipulated texts to management. The committee investigating the complaint relied on the doctored messages to conclude that it was the plaintiff who was engaging in sexual harassment and terminated her employment – notwithstanding the plaintiff’s insistence that the co-worker was lying and her offer to show her own cell phone as proof, which the committee declined to view. Vacating the judgment of the district court, which had held that the co-worker’s retaliatory intent could not be attributed to the employer, the Second Circuit held that liability may be imputed to the employer if it “negligently allows itself to be used as a conduit for even a low-level employee’s discriminatory or retaliatory prejudice.” 

In the First Circuit, the cat’s paw theory has met with mixed success. For example, in 2004, the Court held in Cariglia v. Hertz Equipment Rental Corporation that an employer may be liable when a neutral decision-maker takes adverse action against an employee based on information that is manipulated by a supervisor with discriminatory animus. More recently, however, the Court held in Ameen v. Amphenol Printed Circuits, Inc. that an employee’s retaliation claim under a cat’s paw theory was “effectively declawed” where the employee failed to demonstrate any evidence of discriminatory animus.

For employers, these decisions highlight the importance of conducting thorough internal investigations and ensuring that such investigations take into account possible retaliatory or discriminatory motives of supervisors and co-workers who provide information, especially if the investigation results in an adverse action against an employee. As the above cases make clear, an employer’s failure to do so may result in it being the moral of a very unpleasant story.