You may be familiar with the Aesop fable in which a monkey convinces a naïve cat to burn his paw in order to pull chestnuts from a hot fire for their mutual satisfaction but then eats all the chestnuts himself. This “cat’s paw” doctrine, as it has been coined in employment litigation, has been applied by courts where a decision maker is manipulated by an employee with bad motives into taking an adverse action against another employee.
The United States Supreme Court first validated employer liability under the “cat’s paw” theory in Staub v. Proctor Hospital in 2011, where it found that if a biased supervisor is the proximate cause of an employee’s termination, the employer can be held liable. Although Staub did not involve a claim of pursuant to Title VII of the Civil Rights Act, appellate courts have repeatedly adopted the doctrine in Title VII discrimination and retaliation cases and have held that an employer can be held liable discriminatory or retaliatory animus of a supervisory employee who influenced, but did not make, the ultimate employment decision.
On August 29, 2016, the United States Court of Appeals for the Second Circuit, in Vasquez v. Empress Ambulance Service, Inc., appears to have extended the reach of the “cat’s paw” doctrine, holding that the doctrine could be applied to hold an employer liable for an adverse employment decision that was influenced by the discriminatory or retaliatory animus of a low-level, non-supervisory co-worker.
In Vasquez the plaintiff, after receiving unsolicited sexual photographs from a male co-worker one night shift, promptly informed her supervisor and filed a formal complaint of sexual harassment, which her employer promised to investigate that same morning. Within a few hours, however, the male co-worker had discovered her complaint and had provided the employer with false documents purporting to show plaintiff’s consent to and solicitation of a sexual relationship.
In reliance on those documents, and notwithstanding plaintiff’s offers to produce evidence in refutation, plaintiff’s employer immediately fired her on the ground that she had engaged in sexual harassment. Plaintiff brought an action asserting that she was wrongfully terminated in retaliation for complaining of sexual harassment pursuant to Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law. Plaintiff relied on the “cat’s paw” doctrine arguing that the employer’s decision to terminate her employment was influenced by false information provided by her male co-worker.
The United States District Court for the Southern District of New York dismissed plaintiff’s claim, citing to the Supreme Court’s decision in Staub, holding that the retaliatory intent of plaintiff’s co-worker, a low-level employee, could not be imputed to the defendant employer and that the employer consequently could not have engaged in retaliation.
The U.S. Court of Appeals for the Second Circuit disagreed and reinstated plaintiff’s complaint. The Second Circuit noted that while the Supreme Court has approved holding an employer liable for the retaliatory intent of one of its “supervisors” under a “cat’s paw” theory, it specifically “express[ed] no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.” The question before the Second Circuit was under what circumstances the “cat’s paw” approach will render an employer responsible for the animus of a low-level co-worker.
After noting that the First Circuit had already determined that that a discriminatory termination claim can proceed against an employer under a cat’s paw theory where the employer negligently permitted a plaintiff’s co-worker, a low-level employee harboring discriminatory intent, to induce the plaintiff’s termination, the Second Circuit held that the employer’s “own negligence provides an independent basis” to treat the non-supervisor male co-worker as its agent and that plaintiff could recover against her employer if the employer was itself negligent in allowing the male-co-worker’s false allegations, and the retaliatory intent behind them, to achieve their desired end.
In finding that the plaintiff had sufficiently alleged that the employer was negligent in relying upon the male co-worker’s accusations, the Court noted that: (i) the employer should have treated the male co-worker’s accusations with skepticism given that he had just learned that he had been accused of sexual harassment by plaintiff which provided him with a reason to lie and a motive to portray plaintiff as the perpetrator rather than the victim; (ii) the timing was suspicious as it seemed unlikely that plaintiff would go from eagerly trading explicit messages to reporting such conduct as unwelcome harassment within the space of only six hours and that on the morning he is accused of harassment, the male-co-worker just happened to have on hand printed copies of text messages purportedly received from plaintiff to substantiate his claim that she purportedly initiated the inappropriate exchange; and (iii) the messages themselves provided reason to distrust the male co-worker’s account.
Plaintiff alleged that her employer “chose to ignore these warning signs and instead blindly credited the co-worker’s assertions, obstinately refusing to inspect plaintiff’s phone or to receive any other evidence proffered by plaintiff in refutation.” Accepting plaintiff’s allegations as true, the Second Circuit determined that a reasonable jury could find that the employer acted negligently in terminating plaintiff solely on the basis of the male co-worker’s accusations, and thus plaintiff’s claims could proceed. Thus, the Second Circuit held that “an employer may be held liable for an employee’s animus under a ‘cat’s paw’ theory, regardless of the employee’s role within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim to suffer an adverse employment action.”
The Court was careful to explain, however, that liability will not be found “simply because [an employer] acts on information provided by a biased co-worker.” Indeed, the Court explained that it is only when an employer in effect adopts an employee’s unlawful animus by acting negligently with respect to the information provided by the employee can the employee’s motivation be imputed to the employer and used to support a claim under Title VII. Thus, “an employer can still ‘just get it wrong’ without incurring liability under Title VII, but it cannot ‘get it wrong’ without recourse if in doing so it negligently allows itself to be used as conduit for even a low-level employee’s discriminatory or retaliatory prejudice.”
In light of the Second Circuit’s decision, employers are reminded to conduct thorough investigations whenever an accusation against an employee is made by another employee and consider all evidence. Remember that negligence is the key and always proceed in good faith.
