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.
