EMPLOYMENT DISCRIMINATION: Employer Not Liable for Age Discrimination Under "Cat's Paw" Theory
The Lawletter, Vol 35 No 11, July 29, 2011
John Stone, Senior Attorney, National Legal Research Group
The unusual legal term "cat's paw" apparently originated in Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990). "Cat's paw" describes a theory of the liability of an employer for a discriminatory action that stems from the prohibited bias of a subordinate employee who set up but did not actually take the action complained of. In reversing a summary judgment for the employer in this age discrimination case, the court described the theory, as to which there were material factual issues to be decided, as follows:
Lehnst [a supervisor] did not fire Shager [plaintiff]; the Career Path Committee did. If it did so for reasons untainted by any prejudice of Lehnst's against older workers, the causal link between that prejudice and Shager's discharge is severed, and Shager cannot maintain this suit even if Asgrow [employer] is fully liable for Lehnst's wrongdoing. . . . But if Shager's evidence is believed, as in the present posture of the case it must be, the committee's decision to fire him was tainted by Lehnst's prejudice. Lehnst not only set up Shager to fail by assigning him an unpromising territory but influenced the committee's deliberations by portraying Shager's performance to the committee in the worst possible light. Lehnst's influence may well have been decisive. The committee's deliberations on the question whether to fire Shager were brief, perhaps perfunctory; no member who was deposed could remember having considered the issue. A committee of this sort, even if it is not just a liability shield invented by lawyers, is apt to defer to the judgment of the man on the spot. Lehnst was the district manager; he presented plausible evidence that one of his sales representatives should be discharged; the committee was not conversant with the possible age animus that may have motivated Lehnst's recommendation. If it acted as the conduit of Lehnst's prejudiceChis cat's‑pawCthe innocence of its members would not spare the company from liability. For it would then be a case where Lehnst, acting within (even if at the same time abusing) his authority as district manager to evaluate and make recommendations concerning his subordinates, had procured Shager's discharge because of his age. Lehnst would have violated the statute, and his violation would be imputed to Asgrow.
Id. at 405 (emphasis added) (citation omitted); see also EEOC v. BCI Coca‑Cola Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006) ("The 'cat's paw' doctrine derives its name from a fable . . . in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. As the cat scoops the chestnuts from the fire one by one, burning his paw in the process, the monkey eagerly gobbles them up, leaving none left for the cat. Today the term 'cat's‑paw' refers to one used by another to accomplish his purposes. In the employment discrimination context, 'cat's paw' refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action." (citations omitted) (internal quotation marks omitted)).
Recently the court in Simmons v. Sykes Enters., No. 09-1558, 2011 WL 2151105 (10th Cir. June 2, 2011), found in favor of an employer sued for age discrimination under the "cat's paw" theory of liability (also known as a "subordinate bias" theory of liability). The court first noted that the Supreme Court had recently affirmed the theory of "cat's paw" liability in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), a discrimination suit arising under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), in which the Court had held that an employer is liable if (1) a supervisor performs an act motivated by antimilitary animus that is intended to cause an adverse employment action, and (2) that act is a proximate cause of the ultimate employment action. (For an in-depth discussion of Staub in a recent edition of The Lawletter, see John Buckley, Supreme Court Applies Proximate Cause Analysis to USERRA "Cat's Paw" Case, 35 Lawletter No. 7 (May 6, 2011)
However, unlike Title VII of the Civil Rights Act of 1964 and USERRA, the text of the Age Discrimination in Employment Act does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor; rather, a plaintiff alleging age discrimination must instead prove that age was a "but for" cause of his/her termination or, put differently, that age was a determinative factor.
In Simmons, assuming without deciding that two subordinate employees had been motivated by ageist animus and had intended to have Simmons's employment terminated, the court still had to determine whether Simmons's age was a "but‑for" cause of her termination by asking whether the actual decisionmakers would have fired Simmons but for the alleged bias of the subordinates. Neither of those subordinates had caused the investigation of Simmons to begin for violation of a company policy on maintaining confidentiality of information. Rather, the investigation had begun in response to a complaint initiated by an aggrieved, unbiased employee. In addition, the decisionmakers had received input from individuals other than the allegedly biased subordinates before deciding to recommend termination. Persons against whom there was no allegation of discriminatory bias had concluded that Simmons should be terminated. These undisputed facts permitted only one inference: that absent the alleged discriminatory bias, the employer would still have fired Simmons because from the decisionmakers' perspective, she had violated company policy and could not be trusted with confidential information. Thus, a reasonable jury could not find that Simmons had been terminated because of her age.