What Is The Cat’s Paw Theory Of Liability?
Best Ohio Employment Discrimination Attorney Answer: What can I do if a racist manager lied about
my performance to get me fired? Can my supervisor lie about me to get me in
trouble if I reject his sexual advances? Do I have a wrongful termination claim
if the owner that fired me didn’t know my evaluations were lies in retaliation
for reporting a supervisor’s discriminatory acts? Can I sue if another coworker
convinces my boss I should be fired?
Employees sometimes come to Spitz, The Employee’s Law Firm concerned whether they can sue their employer or not
because their direct supervisor, who had no power otherwise, convinced their unwitting
boss to fire them for a racist or discriminatory reason. Although this is an
issue that our employment attorneys addressed before, it bears circling back to every few
years to address again. (See Top
Employment Lawyer Reply: Do I Have A Claim If I Was Fired By HR And Not By My
Racist Boss?; My
Employer Will Not Promote Me Because Of My Age. I Need The Top
Employment Lawyer In Ohio!).
Many years ago, it used to be the case that if the
individual person who made the final decision to terminate an employee did not
personally have a discriminatory animus, the employee would not have a leg to
stand on. Now, employees can argue that a middle level supervisor was the
person with the discriminatory bias, and that their discriminator’s opinion made
its way into the final decision maker’s thought process. This is called the
Cat’s Paw Theory of discrimination.
The Cat’s Paw Theory of liability was first coined in 1990
by United States Court of Appeals for
the Seventh Circuit Judge
Richard Posner. The theory gained momentum and was officially recognized by
States Supreme Court in 2011 for
select employment discrimination categories. Since then it has slowly been
adapted to other forms of employment discrimination claims. Recently, cat’s paw
theory claims were extended to cover FMLA based claims. (See If
The Person Who Fired Me Did Not Know About My FMLA Use, Can I Still Sue For
The Cat’s Paw Theory gets its name from a French fable. The
fable is about a monkey who want to get roasting chestnuts out the fire in
order to eat them. Realizing that putting his own monkey hands in the fire is a
bad thing to do, the monkey persuaded an unwitting cat to pull the chestnuts
out of the fire – essentially using the cat’s paws. The monkey convinced the
cat to do the dirty work while the monkey gets what he really wants with no
repercussions or injury.
In the workplace context it addresses a situation when a
midlevel manager realizes that he or she cannot get rid of an employee in
violation of Title VII of the Civil Rights
Act of 1964
with Disabilities Act
(barring discrimination based on race/color, religion, gender/sex, national
origin, age, or disability) and convinces a higher
level manager or HR to get rid of the employee. To carry the analogy to
conclusion, the midlevel manager is the monkey, the violation of
employment discrimination laws would be the fire, and the higher-level manager or HR
would be the cat.
To prevent this tactic, the Cat’s Paw Theory hold that a company
is still liable if the person who made the decision to fire an employee wasn’t
motivated by biased intent, but the biases of another person along the way
worked its way into the final decision.
The Cat’s Paw Theory applies in cases involving layers of
supervision between the plaintiff-employee and the employer’s decision maker as
long as the employee can show that the biases of the lower-level supervisor
influenced the ultimate decision maker. The case where the Sixth Circuit Court
of Appeals finally
recognized the cat’s paw theory for employees in Michigan, Ohio, Kentucky and
Tennessee was Marshall v. Rawlings Co.
In Marshall v. Rawlings
Co. LLC., Gloria Marshall was terminated after using Family
and Medical Leave Act (“FMLA”). She had to take time off work to recover from mental illness and seek
Gloria started working for Rawlings in January 2006. Gloria was
a top performer for the company, and she received good reviews. She was
promoted to Team Leader in the Workers Compensation Division in 2011. Gloria
suffered from anxiety, depression, bipolar and post-traumatic stress disorder. In
January 2012, Gloria had to take medical leave under FMLA because of her
medical disorders. When she returned from leave in March 2012, she was required
to clear the back log of work that accumulated during her time off and keep up
with her current caseload. Gloria said that during this time, she worked
between 12 and 14 hours a day.
In addition, she was the only team leader that was required
to spend 30 minutes per day with each new analyst on her team, which consisted
of more new analysts at that time than any other team. Gloria immediately
voiced her concern to the Operational Manager, Leah Sarley and Division
Director, Mike Elsner. Gloria told them that she was being set up to fail after
taking FMLA leave. When she first reported that she felt she was facing retaliation and being
discriminated against, her direct supervisors became even more hostile. It was
a recipe for disaster.
Gloria worked tirelessly and somehow managed to complete all
of her assigned tasks. She also developed a file reduction calculator which was
implemented and is still used throughout her division. Despite this, in
September 2012 Gloria was demoted from Team Leader to Analyst. In March 2013,
Gloria had to take FMLA leave again for several weeks until April 2013. When
she returned to work, she said that she felt like she was no longer welcome at
Rawlings. The Vice President of Subrogation, Jeff Bradshaw singled her out, and
questioned her in front of her peers about morale at a department luncheon. He
constantly belittled her for taking FMLA and joked about whether she was “going
to take another vacation” any time soon.
On September 23, 2013, Rawlings Division Director, Mile
Elsner, called a meeting with Gloria. He asked her why she wasn’t as passionate
about work anymore. She told him that she felt like was discredited, sidelined
and setup for failure after coming back from FMLA leave. Elsner asked Gloria if
she wanted to file a complaint. She said no, because she did not want to lose
her job and was fearful of retaliation. Two days later, Elsner spoke to her
about making a harassment complaint. He said that since she was fearful, he
would file it himself on her behalf.
On September 30, Gloria went to a meeting with Division President, Laura
Plumley, regarding the complaint that Elsner filed. Gloria again told Laura
that she would not have filed the formal complaint because she was worried that
she would lose her job. Laura chastised Gloria for verbalizing harassment.
Laura told Gloria that it was suspicious that she waited to first raise the
issue during a counseling meeting. Nevertheless, Laura told that she would not
On the next day, October 1, 2013, Rawlings Company Owner,
George Rawlings called Gloria to a meeting first thing in the morning. He
stated that he did not agree that she was being retaliated against for taking
FMLA and fired her for “having a bad attitude.” That is insane. How can you
promise to an employee one day, that they will not be fired after reporting
discrimination, and then literally the very next morning they’re fired? Timing
is not always everything, but the close proximity in time usually helps.
When Gloria sued Rawlings, the company argued that the
President had no discriminatory animus towards Gloria. The company also argued
that the owner’s reason for terminating her was not motivated by any
discriminatory intent. However, Gloria, using the Cat’s Paw Theory, argued that
the reviews and the opinions that her direct supervisors, had influenced the
The United States Court of Appeals for the Sixth Circuit
explained the rationale for Cat’s Paw Theory and found it equally applicable to
FMLA claims as other types of employment discrimination and retaliation claims:
“The primary rationale for the
cat’s paw theory of liability is that, because of a company’s organizational
chart does not always accurately reflect its decision making process, an
employee of lower rank may have significant influence over the decision maker.
The ultimate may be detached from day-to-day operations and consequently apt to
defer to the judgment of a lower level supervisor. As a result, a biased low
level supervisor with no disciplinary authority might effectuate the
termination of an employee from a protected class.”
In other words, the court recognized that there may be
actors at play, who typically don’t have power, but because they used their
influence to persuade a higher-level employee to fire someone that same company
should not be able to hide from liability. The court also recognized that the
cat’s paw theory accomplishes two goals. “First, the cat’s paw theory addresses
situations in which decision makers unthinkingly adopt the recommendations of
their biased lower-level supervisors; second, it forecloses a strategic option
for employers who might seek to evade liability through willful blindness as to
the source of reports and recommendations.” Music to my ears.
The United States Court of Appeals for the Sixth Circuit made
the right call by extending the Cat’s Paw Theory to cover FMLA causes of action
as well. The whole purpose of FMLA protection is to prevent employees from
unfair discrimination. Since the Supreme Court recognized the Cat’s Paw Theory for
discrimination, it then follows that the Cat’s Paw Theory should be used to
protect other protected classes from employment discrimination.
If you are searching “How do I find the best wrongful termination lawyer near me?” or “I was
fired today because of my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation.
Call our office at 866-797-6040. Spitz, The Employee’s Law Firm and its attorneys are
experienced and dedicated to protecting employees’ rights and solving
This employment law website is an advertisement to mistreated employees. The
materials available at the top of this page and at this employment law website
are for informational purposes only and not for the purpose of providing legal
advice or forming an attorney-client relationship. If you are still asking,
“How do I request FMLA leave”, “What should I do if my job is retaliating against me for reporting unlawful discrimination to human resources” “My boss discriminated against me because I
took leave to be active duty military” or “I was fired because of my disability
accommodation request”, it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not
create an attorney-client relationship. The legal opinions expressed at or
through this site are the opinions of the individual lawyer and may not reflect
the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.