Posted on 03/04/2011 at 10:43 AM by Russell Samson
On Tuesday, March 1, 2011, the United States Supreme Court issued its opinion in Staub v. Proctor Hospital, finding the cat's paw is a valid theory of liability in discrimination cases. The cat's paw theory holds an employer liable for the discriminatory intent of an employee who played no role in the decision, but nevertheless exerted influence over the ultimate decision maker. The opinion was written by Justice Scalia who also wrote the opinion in the third party retaliation case of Thompson v. North American Stainless (see our earlier post on this case). Staub was a member of the United States Army Reserve while employed as a technician by Proctor Hospital. Both his immediate supervisor, Mulally, and Mulallys supervisor, Korenchuk, were openly hostile to his military obligations. Mulally gave Staub a disciplinary warning which required Staub to report to her or Korenchuk when his cases were completed. After Korenchuk reported that Staub violated the Corrective Action, Proctors vice president of human resources (Buck) reviewed Staubs personnel file and decided to fire him. Staub grieved, claiming that Mulally fabricated the allegation in the warning out of hostility toward his military obligations, but Buck adhered to her decision. Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which forbids an employer to deny employment, reemployment, retention in employment, promotion, or any benefit of employment based on a persons membership in or obligation to perform service in a uniformed service, and provides that liability is established if the persons membership . . . is a motivating factor in the employers action. Staub contended not that Buck was motivated by hostility to his military obligations, but that Mulally and Korenchuk were, and that their actions influenced Bucks decision. A jury found Proctor liable and awarded Staub damages, but the Seventh Circuit reversed, holding that Proctor was entitled to judgment as a matter of law because the decision maker had relied on more than Mulallys and Korenchuks advice in making her decision. The Supreme Courts opinion reversed the 7th Circuits decision. The basic holding:
. . . if a 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 a proximate cause of the ultimate employment action, then the employer is liable under USERRA.
The Supreme Court declined to provide immunity even to employers which have the decision-maker undertake an independent investigation of the circumstances leading to the adverse employment action. The court observed that the supervisors biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisors recommendation, entirely justified. The Court did indicate that
While the Supreme Court opinion focused on USERRA, it noted that USERRAs motivating factor causation standard is very similar to that in Title VII, which prohibits employment discrimination because of . . . race, color, religion, sex, or national origin and states that such discrimination is established when one of those factors was a motivating factor for any employment practice, even though other factors also motivated the practice. 42 U. S. C. §§2000e2(a), (m). As we have discussed in earlier blog posts and articles (see A Second Jury Weighs In on Gross v. FBL, Hearings on Bill in Response to Gross v. FBL, and Supreme Court Issues Employer-Friendly Age Discrimination Ruling in Gross v. FBL), the federal Age Discrimination in Employment Act has a but for standard for liability. Up to this point, cats paw cases have been relatively few and far between situations where it is alleged that the decision maker was used by someone else to carry out that persons discriminatory intent. With the apparent focus in Staub on underlying disciplinary actions and the motives of those who imposed them in the first instance, are employers (and the lawyers who defend them) going to see allegations about every warning or disciplinary action that may have been given to employees that might have been a factor in the termination decision? Given that under the standards of the Court here looking to such things as a proximate cause these generally are dependent upon factual determinations, summary judgments will most likely not be available. This suggests that not only do employers have little protection against the discriminatory animus of those who played no real role in the decision-making process, but they face some increasing costs for defending claims.
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