United States: Second Circuit Holds That Non-Supervisory Employee's Retaliatory Intent May Be Imputed To An Employer Under Title VII

In Vasquez v. Empress Ambulance Service, Inc., the Second Circuit adopted the "cat's paw" theory of liability under Title VII and held that the retaliatory intent of a low-level, non-supervisory employee may be imputed to an employer where "the employer's own negligence gives effect to the employee's retaliatory animus and causes the victim to suffer an adverse employment decision."

The Facts

Vazquez, an emergency medical technician (EMT), reported to her supervisors that a fellow EMT had sexually harassed her. Suspecting that Vasquez had complained about his behavior, the co-worker manipulated a series of text messages and photos to make it appear as if it was in fact the plaintiff who was soliciting a sexual relationship with him, and presented the doctored items to Empress during the investigation.

Relying on these manipulated documents, Empress concluded that Vasquez was "having an inappropriate sexual relationship" with the co-worker and terminated her. Vasquez asserted that the co-worker was lying and offered to show Empress her own cell phone to prove that no such illicit communications had occurred. Empress declined to review the plaintiff's cell phone and further refused to show her the "racy self-taken photo" that the co-worker claimed she had sent him, which showed only a "small fraction of a face" and could not be positively identified as being Vasquez.

The plaintiff brought suit against Empress under Title VII and the New York State Human Rights Law, claiming that Empress wrongfully terminated her in retaliation for her complaint of sexual harassment. Empress moved to dismiss the complaint. The district court granted the motion, finding that the co-worker's retaliatory intent could not be attributed to Empress and therefore Empress could not have engaged in retaliation against Vasquez.

The Decision

The Second Circuit reversed, holding that "agency principles permit the retaliatory intent of Vasquez's co-worker to be imputed, as a result of Empress's alleged negligence, to Empress." Adopting the "cat's paw" theory, the court held that a plaintiff may succeed on a Title VII claim even "absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the decision-making process." The court further held that the complaint sufficiently pled negligence by virtue of the allegations that Empress had credited the co-worker's accusations "to the exclusion of all other evidence, and specifically declin[ed] to examine contrary evidence tendered by Vasquez, when it knew or, with reasonable investigation, should have known of [the co-worker]'s retaliatory animus—caused [the co-worker]'s accusations to form the sole basis for Empress's decision to terminate Vasquez."

The court noted that the decision "should not be construed as holding an employer liable simply because it acts on information provided by a biased co-worker," where such action is taken "non-negligently and in good faith." By the same token, "an employer who negligently relies on a low-level employee's false accusations in making an employment decision will not be liable under Title VII unless those false accusations themselves were the product of discriminatory or retaliatory intent." Rather, "[o]nly when an employer in effect adopts an employee's unlawful animus by acting negligently with respect to the information provided by the employee, and thereby affords that biased employee an outsize role in its own employment decision, can the employee's motivation be imputed to the employer and used to support a claim under Title VII."

Conclusion

Although Vasquez was a retaliation case, the decision has equal application to claims of discrimination. It presents challenges and potential pitfalls for employers, who must take into account the potential biases and motivations of decision-makers and witnesses when considering discipline and discharge. Where even a low-level employee witness may harbor discriminatory or retaliatory intent, the employer may be exposed to a claim premised on a negligence theory. The decision highlights the particular importance of conducting a thorough investigation of workplace conduct controversies. As always, employers should take care to document all aspects of an investigation and create a clear record that any ultimate actions taken were based on thoughtful examination of the facts and the potential motivations of all involved.

Second Circuit Holds That Non-Supervisory Employee's Retaliatory Intent May Be Imputed to an Employer Under Title VII

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