US Supreme Court Rules for Employee on “Cat’s Paw” Theory

The Unit­ed States Supreme Court recent­ly unan­i­mous­ly issued a major vic­to­ry for employ­ees under “USERRA”, the Uni­formed Ser­vices Employ­ment and Reem­ploy­ment Rights Act of 1994, 38 U.S.C. § 4301 et seq., on the “cat’s paw” the­o­ry in employ­ment dis­crim­i­na­tion claims. The deci­sion was in Staub v. Proc­tor Hos­pi­tal, — U.S. — (March 1, 2011) (opin­ion at Google Schol­ar). Jus­tice Scalia wrote the opin­ion for the unan­i­mous court. Jus­tice Ali­to wrote an opin­ion con­cur­ring in the judg­ment, which Jus­tice Thomas joined. Jus­tice Kagan did not par­tic­i­pate in the deci­sion.

What is the “Cat’s Paw” Sce­nario?

Drew's kitty-cat, HannaSo, what the heck is the “cat’s paw” the­o­ry? Does it explain why my cat, pic­tured at the left, is star­ing so intent­ly at you?

First, to define “cat’s paw” in a non-legal con­text, the Webster’s Online dic­tio­nary defines a “cat’s paw” as: “A per­son used by anoth­er to gain an end.” The term aris­es out of a fable in which a a shrewd mon­key tricks a cat into pulling roast­ing chest­nuts out of a fire—the cat gets its paw burned, and the mon­key gets the chest­nuts and scam­pers away unhurt.

Sec­ond, the “cat’s paw” trans­lat­ed into an employ­ment set­ting goes some­thing like this: the clever big­ot in a workplace—Ralph, a white guy, play­ing the part of the shrewd mon­key– wants to get rid of anoth­er employ­ee, Bob, because Bob is African Amer­i­can. Ralph has no pow­er to fire Bob. So Ralph trick’s Bob’s boss, Sal­ly (white, play­ing the part of the tricked cat), into fir­ing Bob. Ralph tells Sal­ly that Bob embez­zled $300,000. Sal­ly, trust­ing Ralph, fires Bob. Ralph (the shrewd Mon­key), Sal­ly (the tricked Cat), and Bob, all work for Buy-N-Large Cor­po­ra­tion (I got that name out of the Pixar movie, Wall-E).

So Bob sues Buy-N-Large for race dis­crim­i­na­tion. Let’s assume that Buy-N-Large proves con­clu­sive­ly that Sal­ly was com­plete­ly free of any sort of racial bias, but let’s also assume that the evi­dence is over­whelm­ing that Ralph was a flam­ing racist.  And let’s also assume that only Sal­ly had the fir­ing author­i­ty over Bob, that she in fact made the ter­mi­na­tion deci­sion, and that Ralph had no deci­sion-mak­ing role in Bob’s ter­mi­na­tion.

Buy-N-Large then files a motion for sum­ma­ry judg­ment to dis­miss Bob’s law­suit, alleg­ing that the employ­ment dis­crim­i­na­tion laws require proof of dis­crim­i­na­to­ry motive on the part of the com­pa­ny, Sal­ly con­clu­sive­ly had not a dis­crim­i­na­to­ry bone in her body, and there­fore Buy-N-Large can­not be held liable under the employ­ment dis­crim­i­na­tion laws.

So you’re the judge. Remem­ber, Sal­ly was free of even a hint of dis­crim­i­na­to­ry intent, she made the deci­sion to fire Bob, and she was the only one autho­rized by Buy-N-Large to fire Bob. Ralph is sit­ting there in full Klan regalia, had no author­i­ty to fire Bob, but Ralph tricked Sal­ly into fir­ing Bob over the false alle­ga­tion of embez­zle­ment. Again, to com­pare the roles to those in the fable: Ralph is the clever mon­key who tricked Sal­ly, the cat, into fir­ing Bob (the object of Ralph’s trick­ery, the chest­nuts in the fable).

Pri­or to the Supreme Court’s deci­sion in Staub v. Proc­tor Hos­pi­tal, the fed­er­al courts had been deeply divid­ed on whether Buy-N-Large (stick­ing with my sil­ly exam­ple) could be held liable for employ­ment dis­crim­i­na­tion.  In Staub’s case (which dealt with dis­crim­i­na­tion based on mil­i­tary ser­vice, as opposed to the race dis­crim­i­na­tion in my exam­ple), the tri­al judge and jury found for the employ­ee Staub, and then the Third Cir­cuit Court of Appeals unan­i­mous­ly (3–0) ruled for the employ­er, hold­ing that the employ­er could not be held liable under rough­ly the sce­nario I use in my exam­ple. Then the Unit­ed States Supreme Court unan­i­mous­ly (8–0) ruled for Staub, the employ­ee, hold­ing that the employ­er could be held liable for dis­crim­i­na­tion under the “cat’s paw” sce­nario.

The Issues Under USERRA in Staub

To final­ly get back to what hap­pened in the Staub case, Vin­cent Staub was  a mem­ber of the Army Reserve while work­ing as an angiog­ra­phy tech­ni­cian for Proc­tor Hos­pi­tal in Illi­nois. Staub con­tend­ed that his imme­di­ate boss­es were angry about his Army reserve ser­vice, in that super­vi­sors had to sched­ule around Staub’s oblig­a­tion to be on mil­i­tary reserve duty one week­end per month. USERRA pro­hibits dis­crim­i­na­tion against employ­ees like Staub, who are in the mil­i­tary reserve.

Here are the man­age­ment play­ers in Staub’s case, and I point out their com­pa­ra­ble fig­ures in the “cat’s paw” fable, and I have sum­ma­rized the rel­e­vant evi­dence of any dis­crim­i­na­to­ry motive:

  • Jan­ice Mulal­ly was Staub’s imme­di­ate super­vi­sor. Mulal­ly was the “clever mon­key” in the fable, alleged­ly manip­u­lat­ing the “cat’s paw”, Buck. When Staub got fired, Mulal­ly was not a “deci­sion mak­er” in the ter­mi­na­tion. There was sub­stan­tial evi­dence of dis­crim­i­na­to­ry motive on the part of Mulal­ly: (a) Mulal­ly sched­uled  Staub for addi­tion­al shifts with­out notice so he could “pay back the depart­ment for every­one else hav­ing to bend over back­wards to cov­er his sched­ule for the [mil­i­tary] reserves”; (b) Mulal­ly told a co-work­er that Staub’s mil­i­tary ser­vice had been a “strain on the depart­ment”; © Mulal­ly asked the same co-work­er for help to “get rid of him” [Staub].
  • Michael Korenchuk was Mulally’s imme­di­ate super­vi­sor. Korenchuk was anoth­er “clever mon­key” in the fable, alleged­ly manip­u­lat­ing the “cat’s paw”, Buck. When Staub got fired, Korenchuk was not a “deci­sion mak­er” in the ter­mi­na­tion. There was sub­stan­tial evi­dence of dis­crim­i­na­to­ry motive on the part of Korenchuk: Korenchuk told work­ers that Staub’s mil­i­tary ser­vice con­sist­ed of a “bunch of smok­ing and jok­ing” that was a “waste of the tax­pay­ers’ mon­ey”, and there was evi­dence that Korenchuk was aware that Mulal­ly was “out to get” Staub.
  • Lin­da Buck was Vice Pres­i­dent of Human Resources for the hos­pi­tal, Proc­tor Hos­pi­tal. Buck was the inno­cent “cat’s paw” in the fable. When Staub got fired, Buck was the only “deci­sion-mak­er”, but Buck fired Staub large­ly because of the alle­ga­tions made by Mulal­ly and Korenchuk. There was no evi­dence that Buck had any dis­crim­i­na­to­ry motive against Staub.

We have a sit­u­a­tion where there was sub­stan­tial evi­dence that Staub’s imme­di­ate boss, Mulal­ly, and Mulally’s imme­di­ate boss, Korenchuk, both had hos­til­i­ty toward Staub based on his mil­i­tary reserve ser­vice (“dis­crim­i­na­to­ry ani­mus”) and that Mulal­ly was recruit­ing help to “get rid” of Staub (and there was evi­dence that Korenchuk knew of that plan or desire).

So here is a sequence of events that led to Staub’s ter­mi­na­tion:

  • Mulal­ly issued Staub a “cor­rec­tive action” that accused Staub of vio­lat­ing a com­pa­ny pol­i­cy that required Stub to stay in his work area. Staub con­tend­ed in his lat­er law­suit that (a) there was no such pol­i­cy, and (b) even if there was such a pol­i­cy, Staub did not vio­late it.
  • A co-work­er of Staub com­plained about Staub’s “fre­quent unavail­abil­i­ty” and “abrupt­ness” to Buck and a dif­fer­ent Vice Pres­i­dent of Human Resources, McGowan. McGowan direct­ed Buck and Korenchuk to cre­ate a plan of action to solve Staub’s “avail­abil­i­ty prob­lem”.
  • Before that plan of action was for­mu­lat­ed, Korenchuk report­ed to Buck that Staub had left his desk with­out inform­ing a super­vi­sor, in vio­la­tion of the pri­or “cor­rec­tive action”. Staub con­tend­ed the alle­ga­tion was false, and that Staub had left a voice mail mes­sage for Korenchuk that Staub was leav­ing his desk.
  • Buck then relied on Korenchuk’s alle­ga­tion (about Staub leav­ing his desk with­out inform­ing a super­vi­sor), reviewed Staub’s per­son­nel file, and fired Staub. Buck’s ter­mi­na­tion notice, rely­ing on Korenchuk’s alle­ga­tion, stat­ed that Staub had vio­lat­ed the “cor­rec­tive action” direc­tive not to leave his desk with­out noti­fy­ing a super­vi­sor.

So this sequence of events has

  1. Mulal­ly (the “clever mon­key”, with dis­crim­i­na­to­ry intent) dis­ci­plin­ing Staub with the “cor­rec­tive action”,
  2. Korenchuck (the sec­ond “clever mon­key”, with evi­dence of dis­crim­i­na­to­ry motive) mak­ing alle­ga­tions that Staub vio­lat­ed the “cor­rec­tive action” to Buck (the cat, with no evi­dence of dis­crim­i­na­to­ry motive);
  3. Buck, in reliance on Korenchuk’s alle­ga­tion that Staub vio­lat­ed Mulally’s “cor­rec­tion action”, fired Staub.

USERRA and a “Moti­vat­ing Fac­tor” in the Employer’s Action

USERRA pro­hibits an employ­er from tak­ing adverse action against an employ­ee based on an employee’s mem­ber­ship in mil­i­tary ser­vice, such as being a mem­ber of the Army reserve. 38 U.S.C. § 4311(a).

An employ­er vio­lates USERRA if an employee’s mil­i­tary ser­vice was a “moti­vat­ing fac­tor” in the “employer’s action” against the employ­ee, unless the employ­er can prove that the adverse action “would have been tak­en in the absence of such mem­ber­ship. 38 U.S.C. § 4311(a).

Jus­tice Scalia iden­ti­fied the dif­fi­cult issues in look­ing at the “cat’s paw” sce­nario:

The cen­tral dif­fi­cul­ty in this case is 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 some-one else.

Thus, to put it in terms of Staub’s case, if Mulal­ly or Korenchuk had fired Staub, the Court’s would not have dif­fi­cul­ty in con­clud­ing that Staub’s mil­i­tary ser­vice was a “moti­vat­ing fac­tor”  in the ter­mi­na­tion. But since the deci­sion to ter­mi­nate was made by Buck, the lia­bil­i­ty of the “com­pa­ny” has been less clear for the pre­vi­ous courts.

In exam­in­ing the issue, Jus­tice Scalia observed an impor­tant real­i­ty in cor­po­rate deci­sion-mak­ing in employ­ment deci­sions:

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.

Jus­tice Scalia for the Court then set out the key hold­ing in Staub’s case, that the employ­er may be held liable under some sit­u­a­tions involv­ing the broad­er “cat’s paw” sce­nario:

We there­fore hold that if a super­vi­sor per­forms an act moti­vat­ed by anti­mil­i­tary ani­mus that is intend­ed by the super­vi­sor to cause an adverse employ­ment action,3 and if that act is a prox­i­mate cause of the ulti­mate employ­ment action, then the employ­er is liable under USERRA.

Anoth­er way to put this hold­ing is that an employ­er may be liable for a ter­mi­na­tion where the actu­al deci­sion-mak­er lacks any dis­crim­i­na­to­ry motive, but where:

  1. The inno­cent deci­sion-mak­er relies upon infor­ma­tion pro­vid­ed (or action tak­en) by anoth­er super­vi­sor (“the bad super­vi­sor”) of the plain­tiff; and
  2. The bad super­vi­sor har­bors dis­crim­i­na­to­ry ani­mus (ill will) against the plain­tiff; and
  3. The bad supervisor’s infor­ma­tion pro­vid­ed to the inno­cent deci­sion-mak­er is moti­vat­ed by the bad supervisor’s dis­crim­i­na­to­ry ani­mus; and
  4. The infor­ma­tion pro­vid­ed or action tak­en by the bad super­vi­sor is intend­ed by the bad super­vi­sor to cause an adverse employ­ment deci­sion against the plain­tiff; and
  5. The infor­ma­tion pro­vid­ed or action tak­en by the bad super­vi­sor is the prox­i­mate (actu­al, direct) cause of the adverse employ­ment action against the plain­tiff.

Jus­tice Scalia for the Court made it clear that the fact that the inno­cent deci­sion-mak­er applies inde­pen­dent judg­ment in reach­ing the deci­sion does always not insu­late the employ­er from lia­bil­i­ty:

We do not think that the ulti­mate deci­sion maker’s exer­cise of judg­ment auto­mat­i­cal­ly ren­ders the link to the supervisor’s bias “remote” or “pure­ly con­tin­gent.” The decision-maker’s exer­cise of judg­ment is also a prox­i­mate cause of the employ­ment deci­sion, but it is com­mon for injuries to have mul­ti­ple prox­i­mate caus­es. .  . .  Nor can the ulti­mate deci­sion maker’s judg­ment be deemed a super­sed­ing cause of the harm. A cause can be thought “super­sed­ing” only if it is a “cause of inde­pen­dent ori­gin that was not fore­see-able.” (cita­tions omit­ted).

What is the Import of Staub v. Proc­tor Hos­pi­tal?

Even though the deci­sion in Staub per­tained to a claim for mil­i­tary ser­vice-relat­ed dis­crim­i­na­tion under USERRA, lan­guage from the deci­sion strong­ly sug­gests that the hold­ing will also apply to claims for employ­ment dis­crim­i­na­tion under Title VII of the Civ­il Rights Act of 1964, because of the sim­i­lar­i­ty in the cau­sa­tion lan­guage between USERRA and Title VII:

The statute [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.” 42 U. S. C. §§2000e–2(a), (m).

So a pret­ty clear oper­at­ing assump­tion for employ­ers should be that the hold­ing in Staub on USERRA should apply to Title VII and any oth­er fed­er­al employ­ment dis­crim­i­na­tion statute that has cau­sa­tion lan­guage sim­i­lar to USERRA.

Resources for Fur­ther Read­ing

A tran­script of the oral argu­ment on Novem­ber 2, 2010 in the case is avail­able at the Supreme Court’s web site, and you can also lis­ten to the oral argu­ment (with a syn­chro­nized tran­script) at the Oyez site. And for exten­sive cov­er­age of the case, includ­ing analy­sis, oral argu­ment cov­er­age, briefs, and a whole lot more, you can go to the page devot­ed to Staub v. Proc­tor Hos­pi­tal at the always-won­der­ful SCO­TUS­Blog.

Here is the full opin­ion in Staub v. Proc­tor Hos­pi­tal, which I uploaded to Scribd:

 

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Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
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