Appellate SpotlightFebruary 15, 2017
Second Circuit expands “cat’s paw” doctrine to co-workers
NOTE FROM CHUCK ROBERTS: We start 2017 with a two-part series focusing on theories that can affect the legality of employment decisions you make. This edition’s feature article analyzes a decision from the U.S. Court of Appeals for the Second Circuit expanding the scope of the “cat’s paw” theory of discrimination. In our next edition, we’ll cover an appellate decision addressing the disparate impact theory as applied to reductions in force challenged under the Age Discrimination in Employment Act.
Second Circuit expands “cat’s paw” doctrine to co-workers
French author Jean de La Fontaine’s tale Le Singe et le Chat retells the Aesop fable of a monkey who persuaded a cat to pull chestnuts out of a fire for them to eat. The monkey ate all of the chestnuts, leaving the cat with burned paws. Today, we use the term “cat’s paw” to signify someone who is duped into accomplishing the purpose of someone else.
In a 1991 age discrimination case, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit coined the phrase in the employment law context. The U.S. Supreme Court officially recognized the doctrine in 2012, in Staub v. Proctor Hospital, a case arising under the Uniformed Services Employment and Reemployment Rights Act of 1994. In Staub, the Supreme Court held that an employer could be liable for the discriminatory animus of a supervisor – even though that supervisor was not the decisionmaker – if the employee could show that the adverse employment decision was influenced by the biased supervisor. The Supreme Court, however, did not address whether the cat’s paw theory applied when the “influencer” was a co-worker.
Andrea Vasquez worked as an emergency medical technician for Empress Ambulance Service. According to her lawsuit, Tyrell Gray, a dispatcher, began making romantic overtures to her, flirting and repeatedly asking her out on dates. Ms. Vasquez claimed that she rebuffed his advances for a few months. Then, Mr. Gray allegedly texted Ms. Vasquez a picture of his erect penis, captioned “Wat u think.” Ms. Vasquez alleged that she immediately informed her field supervisor about the text upon her return to the office at the end of her shift.
The supervisor took immediate action, walking Ms. Vasquez to a computer so that she could type a formal complaint. However, Ms. Vasquez alleged that Mr. Gray saw her at the computer, typing and crying, and he tried to talk to her. When she refused to speak with him, she alleged, Mr. Gray asked Ms. Vasquez whether she was reporting him. Then, according to the lawsuit, Mr. Gray asked a co-worker to lie and say that Mr. Gray and Ms. Vasquez were in a romantic relationship (the co-worker refused), and Mr. Gray doctored text messages on his phone to make it appear that another woman – with whom he actually was in a romantic relationship – was Ms. Vasquez.
“What level of independent investigation is needed before an employer can avoid cat’s paw liability? At the very least, employers had better have evidence of precisely what the investigation entailed, as Susan Bassford Wilson of our St. Louis Office noted in this Client Bulletin issued not long after the Supreme Court ruled in Staub.
After receiving Ms. Vasquez’s formal complaint, Empress supervisors met with Mr. Gray to investigate. According to the lawsuit, Mr. Gray presented printouts of the doctored text messages, which included a racy photo of a woman whose face was only partially visible, and claimed that he and Ms. Vasquez were in a consensual sexual relationship. Shortly thereafter, Ms. Vasquez met with her union representative, the owner of the ambulance service, and a representative from Human Resources. The HR representative allegedly told Ms. Vasquez that Empress “knew the truth,” and had spoken with Mr. Gray who showed them “proof” of Ms. Vasquez’s improper conduct. According to the lawsuit, the HR representative also said that Empress believed Ms. Vasquez had been sexually harassing Mr. Gray. Empress terminated Ms. Vasquez’s employment. Her denials and her offers to provide her own proof that she was not in a relationship with Mr. Gray fell on deaf ears, she alleged.
Ms. Vasquez filed suit under Title VII and the New York State Human Rights Law, claiming Empress had terminated her in retaliation for complaining of sexual harassment. Empress filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting that Ms. Vasquez could not state a claim because Mr. Gray’s retaliatory intent could not be attributed to Empress. A federal judge in New York agreed, and dismissed Ms. Vasquez’s complaint, and she appealed to the Second Circuit.
CAUTION: It is important to note that a Motion to Dismiss is filed at the very beginning of the litigation, before any discovery has taken place. Because it is filed so early, courts are required to assume that the allegations in the lawsuit are true, and they have to decide whether – with that assumption – the plaintiff has stated a valid claim under the law. If the Motion to Dismiss is denied, the parties proceed with discovery and can later file motions based on the actual evidence in the case, or the case may go to trial. Because Ms. Vasquez’s case was at the “Motion to Dismiss” stage, we don’t know yet whether Empress or Mr. Gray will plausibly deny Ms. Vasquez’s allegations or what evidence they might offer to support their side.
The Second Circuit decision
As noted above, the Second Circuit reversed the dismissal of the lawsuit and found that Empress could be liable for retaliation based on the alleged “cat’s paw” actions of Mr. Gray. In reaching this decision, the Second Circuit relied on “general principles of agency law” to extend the cat’s paw doctrine to co-worker conduct. Citing to the Supreme Court’s decision in Burlington Industries, Inc. v. Ellerth, the Second Circuit set out the four circumstances in which agency principles impose liability on employers, and found that the critical question in this context would be whether the Empress’s negligence allowed Mr. Gray’s bias to play a “meaningful” role in the decision.
In reviewing Empress’ actions as alleged in the lawsuit, the Second Circuit found that Ms. Vasquez had sufficiently alleged that Empress was negligent in allowing Mr. Gray’s false accusations, and the retaliatory intent behind them, to influence its decision to terminate Ms. Vasquez.
The moral of the story
Moving forward, employers, particularly those in the Second Circuit, should proceed with caution in making adverse employment decisions based on allegations or evidence from co-workers. The Second Circuit acknowledged that employers will not automatically be liable in all situations involving co-worker bias. Thus, an employer still can “just get it wrong,” as long as the employer can demonstrate it was not negligent in relying on the information provided by the biased co-worker. Post-Staub, employers knew they had to do at least some investigation into the circumstances surrounding an employee’s discipline or termination. However, in the wake of this decision, employers should be even more mindful of investigating closely any evidence offered by co-workers. Unfortunately, the Second Circuit provided virtually no guidance on the depth of investigation required to avoid a claim of negligence. The allegations in the lawsuit, however, do provide some explanation for why the Second Circuit found that Ms. Vasquez could proceed with her claims based on Empress’s negligence:
- In meeting with Ms. Vasquez to discuss her complaint, her supervisor chose not to look at the obscene photo and text from Mr. Gray.
- Gray – a bit too conveniently, perhaps – was able to produce printouts of text messages that he claimed supported a consensual relationship only hours after Ms. Vasquez complained.
- Empress refused to look at Ms. Vasquez’s phone when she offered to show them that she had never sent any text messages to Mr. Gray as he had claimed.
- The “racy” picture that Mr. Gray provided did not show the woman’s face and could not clearly be identified as Ms. Vasquez.
- The content of the text messages showed “Ms. Vasquez” claimed to be sleeping at a time when the real Ms. Vasquez was working.
At a minimum, employers should carefully review evidence given to them by co-workers and give the individual in question an opportunity to rebut any evidence provided.
Don’t get burned
Employers who don’t want to “burn” their “paws” can best protect themselves by thoroughly investigating allegations of employee wrongdoing. Here are some suggestions:
- Do not rush to judgment, no matter what your personal opinion may be.
- Allow employees a reasonable opportunity to present evidence, and never refuse an offer of evidence from an employee.
- Consider the source of any evidence on which you are basing a decision. Who provided it? Do they have a motive to fabricate it? Does the evidence itself seem suspicious?
- Ask whether any “reporting” employee – whether a supervisor or a co-worker – might have an ulterior motive, such as a longstanding personality conflict, or a desire for revenge, or envy.
- Consider whether there is any reason to believe that the “reporting” employee has an unlawful motive, such as discrimination or retaliation.
- As always, with any investigation, employers should document the steps they take.
Remember, it is okay for employers to “just get it wrong,” but only if they have acted with due diligence. Judges, as well as juries, expect employers to be thorough and fair in their investigations. Proceed with caution lest you get burned.
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