Cat's Paw Claims
By Sarah Goldman Warden - Zumpano, Particios & Winker, P.A.
The term “cat’s paw” originated from a fable in which a monkey convinced a cat to take chestnuts roasting in a fire. The end: a cat with a burnt paw and a run-away monkey with a belly full of chestnuts. The term has been applied in the context of employment law where a plaintiff seeks to hold an employer liable for an adverse action taken by an unbiased decision-maker when such action was influenced by a biased supervisor.
Assertions of cat’s paw liability, also referred to as subordinate bias liability, are common in discrimination and retaliation claims due to today’s corporate multi- leveled decision-making structure where the lower-level supervisor recommending the decision is not the same person making the ultimate employment decision. In March 2011, the United States Supreme Court in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), determined a standard for cat’s paw liability in the face of conflicting standards amongst the circuit courts.
Staub was a military reservist who claimed his immediate supervisor and his supervisor’s manager were hostile to his military obligations. Staub received a disciplinary warning from his supervisor, and the manager later reported to the employer’s human resources vice president that Staub had violated the terms of the warning. The human resources vice president fired Staub. Staub claimed that his supervisor and his supervisor’s manager influenced the vice president of human resources’ decision.
The Supreme Court’s ruling in Staub, based on a discrimination claim under the United States Employment and Reemployment Rights Act (USERRA), is likely to be applied to most other state and federal statutes protecting employees against discrimination and retaliation in the workplace because those laws utilize the same “motivating factor” causation standard or a substantially similar standard.
The Supreme Court, applying tort law and agency principles, held that an employer is liable if (1) a supervisor performs an act motivated by discriminatory animus, (2) intending to cause an adverse employment decision, and (3) that act is a proximate cause of the ultimate adverse employment action. Prior to Staub, in the Eleventh Circuit, an employer could avoid cat’s paw liability upon a showing that the decision-maker conducted a reasonably independent investigation of the facts or if the decision-maker made the decision independent of the recommendation of the biased supervisor. Staub rejects a bright line rule that an independent investigation conducted by the employer cuts off liability.
Under the new standard, an investigation that takes into account a lower-level supervisor’s biased report without determining that the adverse action was, apart from that supervisor’s recommendation, entirely justified is not sufficiently independent to break the causal chain. Staub also instructs that an employer will avoid liability if the investigation leads to reasons unrelated to the lower-level supervisor’s biased conduct that justify the adverse action.
As a result of Staub, summary judgment in favor of the employer may be more difficult in a cat’s paw case where an employee can show a genuine issue of material fact that the lower level supervisor acted on an illegal basis and intended to cause an adverse action. Whether the final decision-maker relied on facts provided by the biased lower-level supervisor may under many
circumstances be a credibility determination for the jury.
To defend against cat’s paw liability, employers need to be wary of any illegal animus on the part of a lower-level supervisor. A disciplinary or termination decision should be made after careful consideration of all factors and independent of the lower level supervisor’s recommendation and unverified information. Further, employers should ensure that any adverse action taken is consistent with previous action taken against similarly situated employees that engaged in similar conduct. Moreover, employers should always keep their anti-discrimination and anti-retaliation policies current, provide routine training on those policies to all employees, and investigate all complaints of discrimination or retaliation in a uniform manner. After all, it is better to have a guiding hand through firm policy, than a “paw” burned by litigation.
By Sarah Goldmann Warden
Zumpano, Patricios & Winker, P.A.
312 Minorca Ave.
Coral Gables, FL 33134
South Florida Legal Guide Midyear 2011 Edition