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 the United 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 FMLA Retaliation?).
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 or Americans 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. LLC.
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 proper treatment.
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 be fired.
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 decision maker.
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 military discrimination, it then follows that the Cat’s Paw Theory should be used to protect other protected classes from employment discrimination.
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