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.

Drew M. Capuder
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