The Lawletter Vol 35 No 7, May 6, 2011
If an employee's supervisor performs an act motivated by antimilitary animus and if that act is a proximate cause of an ultimate adverse employment action, then the employer is liable under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). So the Supreme Court recently held in a case in which a U.S. Army reservist relied on the "cat's paw" theory of liability. Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011). A "cat's paw" case is one in which a plaintiff employee seeks to hold his or her employer liable for the discriminatory animus of a supervisor who did not make the ultimate employment decision but who nonetheless influenced that decision. In applying a tort "proximate cause" analysis to the case, the Court reversed the Seventh Circuit's holding that a court cannot admit evidence of a nondecisionmaking supervisor's animus unless it has first determined whether a reasonable jury could find that the supervisor exerted a "singular influence" over the ultimate decisionmaker.
At trial of the case, the jury found in favor of the reservist on his claim that he had been discharged from his position as a technologist at a hospital due to antimilitary animus, rejecting the hospital's contention that he had been terminated for insubordination. Although the vice president of human resources, who made the discharge decision, did not harbor any antimilitary animus, the reservist argued that such animus should be imputed to the employer because the vice president's decision had been influenced by the reservist's immediate supervisor and that supervisor's supervisor ("the Supervisors"), who did harbor antimilitary animus.
In rejecting the Seventh Circuit's holding that the nondecisionmaking Supervisors would have to have exerted a "singular influence" over the decisionmaker's adverse employment decision, the Supreme Court first noted that the statutory language itself forbids an employer from denying "employment, reemployment, retention in employment, promotion, or any benefit of employment" based on a person's "membership" in or "obligation to perform service in a uniformed service," 38 U.S.C. § 4311(a), and provides that liability is established "if the person's membership . . . is a motivating factor in the employer's action," id. § 4311(c)(1). The Court then observed that USERRA is "very similar to Title VII," which states that discrimination is established when race, color, religion, sex, or national origin is "a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e‑2(a), (m). In construing the USERRA phrase "motivating factor in the employer's action," the Court started from the premise that "when Congress creates a federal tort it adopts the background of general tort law." 131 S. Ct. at 1191.
After discussing tort principles, the Court held that if a nondecisionmaking supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action and if that act is the proximate cause of the ultimate employment action, then the employer is liable under USERRA, notwithstanding that the supervisor did not make the ultimate employment decision. The Court explained that "proximate cause" requires only some direct relation between the injury asserted and the injurious conduct alleged and excludes only those links that are too remote, purely contingent, or indirect.
Although concluding that the "singular influence" standard applied by the Seventh Circuit was improper, the Supreme Court did not automatically reinstate the jury's verdict for the plaintiff. Noting that the jury instruction had not precisely reflected the "proximate cause" standard the Court had just adopted (the instruction had required only that the jury find that "military status was a motivating factor in [the hospital's] decision to discharge him," id. at 1190), the Court advised that the Seventh Circuit should consider in the first instance whether the variance between the instruction and the new rule was harmless error or warranted a new trial. Thus, the case was remanded to the Seventh Circuit for this purpose.