Seyfarth Synopsis: Recently, the Second Circuit held that the "cat's paw" theory of liability may be used to support recovery for claims of retaliation where an employer negligently relies on information provided by a low-level employee with an "unlawful animus," allowing employees to have an "outsize role" in an employment decision.
In Vasquez v. Empress Ambulance Service, the plaintiff complained of sexual harassment and the company began conducting an investigation, which led to the company's downfall. After getting wind of the complaint, the alleged harasser, Gray, himself produced false evidence that the plaintiff, Vasquez consented to and solicited a sexual relationship of her own accord and had in fact harassed Gray, which resulted in Vasquez's termination. The court found the company's reliance on the information Gray provided during the investigation to be unjustifiable. The court held that as a matter of law, the company could be found liable for Gray's acts, despite the fact that he was a low-level employee.
The company's investigation got off on the wrong paw from the start. First, Gray walked into the room where Vasquez was writing a formal complaint, and confronted her about reporting him. Adding fuel to the fire, Gray then asked his coworker to lie for him and tell the supervisors that the harasser and the plaintiff were in a romantic relationship. The coworker refused, but meanwhile, Gray manipulated a text message conversation between he and the Vasquez to make it appear as though another person with whom he exchanged sexual banter was actually Vasquez. He then presented these doctored texts to the company, to show that he had been in a consensual relationship with Vasquez. The court was skeptical that the company could believe that Gray conveniently had printed copies of amorous text messages with Vazquez, at the very time she reported sexual harassment.
Vasquez's supervisors thanked her for telling her story, and promised to sort the situation out, but refused to allow Vasquez to show them explicit photos sent to her by the alleged harasser. On the basis of the doctored text messages given to them by Gray and a "racy" selfie purportedly sent to Gray by Vasquez (which only showed a fraction of a face and was by no means "unequivocally" a photo of the plaintiff), the company fired Vasquez for sexual harassment. The supervisors refused to see any evidence from Vasquez that would refute Gray's evidence and refused to show Vasquez the purported photo of her. The court later noted that Gray "more closely resembl[es] a vengeful suspect than an independent informant." The company failed to see the problem with blindly trusting Gray's evidence that pointed the finger at the complainant while conducting an investigation into his own conduct.
The Second Circuit considered whether cat's paw liability would allow the company to be held liable for its reliance on the alleged harasser's (a coworker of plaintiff) retaliatory information. The court found that where an employer, through its own negligence, gives effect to the retaliatory intent of one of its low-level employees, it may be held liable for retaliation under Title VII.
However, the court also held that an employer who relies on a false report of an employee, but does so non-negligently and in good faith, cannot be held liable under the "cat's paw" theory under Title VII. Further, the court found that an employer who, albeit negligently, relies on a low-level employee's false accusations is not liable under Title VII unless the employee's statements were the product of discriminatory or retaliatory intent, though the company may still face liability under state law for common law negligence.
This case highlights the importance of an independent, prompt, and thorough investigation (including looking at all of the evidence, not just select evidence) of any complaints of harassment, however unlikely litigation may seem at that stage. An investigation may later prove to be a sword, not a shield.
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