Employment Law Update

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Second Circuit Finds a New Way to Skin a Cat

A. The Fable

After a recent decision in the Second Circuit, employers should be aware that there may be more than one way to skin a cat when it comes to proving employment discrimination using a cat’s paw liability theory. The cat’s paw metaphor refers to a fable where a sneaky monkey convinces a cat to grab chestnuts from a fire, allegedly for both of them to share. While the cat tends to his burnt paw, the monkey eats all of the chestnuts, leaving nothing for the cat. The fable exemplifies a person who dupes someone else into doing dirty work for them.

In the employment law context, the cat’s paw theory has been used to describe cases where an employer may face liability for an adverse employment action taken by a well-intentioned decision maker whose action was influenced by another person, typically a supervisor, with discriminatory intent.  The cat’s paw theory is utilized when claims are litigated under statutes that require the plaintiff to demonstrate that discrimination was a motivating factor in their adverse employment action, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act and other anti-discrimination statutes.

B. The Cat’s Out of the Bag and Into the Courts

While courts have employed the fable-influenced theory since the 1990s, the doctrine has evolved over time, trending to a more employee-friendly application. Originally, some courts only held employers liable if the ultimate decision-maker was overwhelmingly influenced by the plaintiff’s supervisor. This was a fairly high standard for aggrieved plaintiffs to meet. For example, one court found the cat’s paw theory inapplicable where an adverse employment action was not “controlled” by, “singularly influenced” by, or made in “blind reliance” on the biased employee’s report.

This “singular influence” approach was rejected by the Supreme Court in its 2011 case, Staub v. Proctor Hospital.  The Supreme Court held that cat’s paw liability would apply if a supervisor, motivated by discriminatory intent, merely had “some direct relation” to the action of the ultimate decision-maker. This resulted in a standard that considered only intent and causation, somewhat easing the burden on plaintiffs. However, Staub specifically did not determine if the discriminatory acts of coworkers, rather than a supervisor, could result in cat’s paw liability.  Courts throughout the country have been left to determine that answer.

C. The Second Circuit’s Expansion: Vasquez v. Empress Ambulance Serv., Inc.

In Vasquez v. Empress Ambulance Serv., Inc., the Court of Appeals for the Second Circuit recently addressed this question.  The court expanded the doctrine described in Staub by holding that cat’s paw liability can apply when biased non-managerial coworkers influence decision-makers. In Vasquez, the plaintiff received unsolicited sexual images from a co-worker, Gray. The plaintiff reported this behavior to her supervisor. Gray, realizing he could face serious consequences for his actions, showed management a series of text messages he had secretly manipulated to look like plaintiff had engaged in sexual banter with him and sent explicit images.  Without considering the plaintiff’s version of events, management terminated plaintiff for sexually harassing Gray. Though Gray was neither a supervisor nor the ultimate decision-maker, the Second Circuit held that cat’s paw theory should apply, resulting in the employer’s liability.

The court reasoned that liability was appropriate because the employer negligently credited Gray’s version of events, without any consideration of the plaintiff’s story. As a result, to employ the cat’s paw doctrine in the Second Circuit, a plaintiff must show: (1) that an employee, motivated by bias; (2) acted in a way intended to cause an adverse employment action; (3) that the act is the proximate cause of the adverse action the plaintiff suffered, and; (4) the ultimate decision-maker negligently relied on the act when executing the adverse action. The court’s reasoning mirrors traditional agency law principles in which an employer can be held liable for the conduct of even a low-level employee in certain scenarios.  

Rulings from other circuits demonstrate that resolution of this issue is far from uniform. For example, the Sixth Circuit limited the applicability of the cat’s paw doctrine to cases where the biased employee is one of plaintiff’s direct supervisors.  The Fifth Circuit suggested that if a co-worker “possessed leverage” or “exerted influence” over the ultimate decision-maker, then a cat’s paw theory could hold.  Other jurisdictions have come out somewhere in between, finding liability where the discriminatory employee was a co-worker, but that co-worker acted like a supervisor.

D. Cat’s Paw Liability in Maryland

Prior to Staub, the Fourth Circuit narrowly interpreted the cat’s paw theory. To survive summary judgment, the plaintiff had to demonstrate “with sufficient evidence that the subordinate employee possessed such authority as to be viewed as the one principally responsible for the decision or the actual decision-maker for the employer.”

Although the Fourth Circuit has acknowledged the cat’s paw theory in the post-Staub era, it continues to apply the theory narrowly. In a recent unpublished opinion, an African-American man brought a claim under Title VII of the Civil Rights Act, alleging that the Department of Veterans Affairs engaged in race-based discrimination at the urging of a consultant advising his boss.   The Fourth Circuit affirmed the lower court’s grant of summary judgement, on the basis that the investigations that led to plaintiff’s dismissal were independent and unbiased. The court noted that employers are generally only liable for employees with supervisory authority, relying on its own pre-Staub decision in Hill.

The court did note that “form does not triumph over substance” before describing how a cat’s paw argument could demonstrate that a subordinate was principally responsible for the contested decision. In this case, the alleged “monkey” figure only advised the ultimate decision-maker, who retained sole authority to act and made an independent decision, rather than relying completely on the input from the “monkey.” The court did not address Staub in its opinion, but the defendant had argued that Staub only applies when a subordinate party essentially usurps the decision-maker’s authority and that the discriminatory animus of anyone without that supervisory authority will not support a cat’s paw theory based claim. That would require the “monkey” having a much greater degree or even total control over the decision. However, the opinion does not clarify the Fourth Circuit’s interpretation of the interplay between Staub and earlier cases, so employers should proceed with caution.  

Beyond the Fourth Circuit, the cat’s paw theory has been referenced and applied in several Maryland cases, at both the state and federal level.  For example, the Court of Special Appeals of Maryland applied Staub to a state law discrimination claim where a woman alleged that her employer had retaliated against her for reporting a sex discrimination complaint against her supervisor.   The company relied upon the advice of the supervisor when deciding to reprimand, reassign and cut the pay of the plaintiff. A jury found in favor of the plaintiff, awarding her $650,000, which was affirmed by the Court of Special Appeals.  

The doctrine has also been employed in several Maryland federal court decisions.  For example, in Ridgell v. Colvin, the District Court applied the Staub test to a Title VII claim brought by a former employee of the Social Security Administration. The plaintiff alleged that a supervisory employee had used a racial slur against her, amongst other claims of discrimination. The plaintiff then argued that she was terminated at the suggestion of the allegedly racist employee. The Court denied the defendant’s motion for summary judgement as to the race discrimination claims because the plaintiff had sufficiently raised issues of material fact under the Staub test.

The question of whether the Staub test applies to biased coworkers, and not just supervisors, remains unclear in Maryland. While the U.S. District Court for the District of Maryland and Maryland’s state courts have fully embraced Staub, the Fourth Circuit continues to employ a narrow interpretation of the theory. Ultimately, employers must be diligent about investigating reports of wrongful conduct before taking action against any employee, regardless of the source.

A version of this article was published in the Maryland State Bar Association Section of Labor and Employment Law Newsletter, Volume XXI, No. 6, Spring 2017.