United States: Can Employers In The Fifth Circuit Be Liable For Retaliation Under Title VII When The Decision Maker Had No Retaliatory Motive?

In Zamora v. City of Houston, 14-20125 (Aug. 19, 2015), the Fifth Circuit joined the Sixth, Eighth, and Tenth Circuits in holding that the "cat's paw" theory of causation can also be utilized in Title VII retaliation cases, which require proof of "but for" causation between the retaliatory sentiment or animus and the adverse employment action.

Case Background: Zamora sued the City for Title VII retaliation after he was suspended for 10 days by the chief of police following an Internal Affairs investigation. Although it was undisputed that the actual decision maker (the chief of police) did not exhibit any retaliatory animus, Zamora nevertheless argued that the "CRU supervisors made retaliatory statements to Internal Affairs, intending to cause Zamora to suffer an adverse employment action, and that they succeeded." The Internal Affairs investigation stemmed from a complaint that the CRU supervisors had violated departmental policies by being untruthful during their depositions related to a pending lawsuit that Zamora had filed. The city argued that even if Zamora's CRU supervisors were motivated by retaliatory animus, their statements during the investigation were not the but-for cause of Zamora's suspension, since the decision to suspend Zamora had been made by a much higher-level decision maker (the chief of police) and was subject to several layers of escalating internal review. The jury disagreed, awarding him $150,000.00 in past and future compensatory damages. The City appealed the denial of its JNOV motion, arguing that Zamora had failed to establish causation as a matter of law.

What is the "cat's paw" theory of causation? Plaintiffs use what is called a "cat's paw" theory of liability, approved for motivating-factor cases in Staub v. Proctor Hospital, 562 U.S. 411 (2011), when they cannot show that the decision maker – the person who took the adverse employment action – harbored any discriminatory animus. In Staub, the United States Supreme Court held that "if a supervisor performs an act motivated by discriminatory 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."

What does the plaintiff typically need to show to establish a Title VII case? A plaintiff asserting a Title VII discrimination claim must show that the employer's discriminatory motive "was a motivating factor" for an adverse employment action. In University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), the Supreme Court clarified that a plaintiff asserting a Title VII retaliation claim must meet a higher standard of causation: such a plaintiff "must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer." Said another way, a plaintiff must show that the adverse action would not have occurred had he or she not engaged in protected activity.

What is the Fifth Circuit's new test for cat's paw in the retaliation context? Reading Staub and Nassar together, the Fifth Circuit holds that in order for a plaintiff to establish causation under a cat's paw theory, the plaintiff must produce sufficient evidence that (1) his or her supervisors, motivated by retaliatory animus, took acts intended to cause an adverse employment action; and (2) those acts were a but-for cause of the adverse employment action.

How did the Fifth Circuit reach its decision? The Fifth Circuit explained that Zamora's suspension did not result from an Internal Affairs investigation of allegations of misconduct against him. Instead, it resulted from an investigation prompted by the complaint that certain of Zamora's CRU supervisors had violated departmental policies, including the prohibition against untruthfulness. That the investigation of Zamora's CRU supervisors resulted in a recommendation to instead punish Zamora for untruthfulness was in large part due to his supervisors' retaliatory statements. The court explained that the CRU supervisors managed, with their retaliatory statements, to turn an investigation of purported wrongdoing by them into a recommendation that one of their accusers be disciplined. In particular, "[w]ithout their statements against Zamora, the investigator would not have recommended discipline; the departmental discipline committee would not have adopted [the investigator's] recommendation; and the chief of police would not have had any recommendation to approve. Clearly, Zamora was disciplined because of the CRU supervisors' retaliatory statements."

What about the business judgment rule? The facts of the case made it easy for the Fifth Circuit to reach its decision. However, long-standing judicial precedent in the Fifth Circuit holds that companies do not necessarily need to make correct or even fair employment decisions, just nondiscriminatory ones. Indeed, Title VII and similar anti-discrimination laws are not intended to be a vehicle for judicial second guessing of business decisions, nor to transform the courts into personnel managers. The Fifth Circuit has also long recognized that an investigator or decision maker is entitled to credit one or more employee's version of facts over another's: a mistaken or incorrect belief can qualify as a legitimate reason to terminate an at-will employee. Thus, until Zamora, it has been settled law in the Fifth Circuit that "a fired employee's actual innocent of h[er] employer's proffered accusation is irrelevant as long as the employer reasonably believed it and acted on it in good faith." See, e.g., Cervantez v. KMGP Servs. Co., 349 Fed. Appx. 4, 10 (5th Cir. 2009). And yet, the Zamora case seems to contradict the honest-belief doctrine and the business judgment rule. Perhaps subsequent courts will distinguish Zamora since the appeal followed a jury verdict against the City. It remains to be seen how district courts will resolve the tension between the honest-belief doctrine, business judgment rule, and application of the cat's paw theory – especially in retaliation cases.

What are the takeaways from this case? The Fifth Circuit has made clear that companies can no longer avoid discrimination or retaliation lawsuits simply by isolating the decision maker from the discrimination or retaliation of a supervisor if the supervisor is in a position to exercise influence or leverage over the decision maker. There are three primary takeaways:

  • The investigator(s) should not be in the business of "recommending" a personnel action. Instead, the investigator(s) should only collect information, interview witnesses, and summarize the facts obtained as well as the policies or work rules implicated.
  • The decision maker should conduct an independent review of all information collected during the investigation. This should include an independent review, for example, of the employee's personnel file and discipline history, witness statements, applicable company policies, etc. Nor should the decision maker hesitate to ask additional questions from the investigator, the employee in question, or any witnesses.
  • Before terminating or approving the termination of an employee who has a pending lawsuit against the company, you should contact legal counsel.

Now, more than ever, decision makers should not just rubber-stamp and base their employment decision entirely on the findings and recommendation of an investigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.