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
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
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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