United States: Sixth Circuit Extends "Cat's Paw" Liability Theory To FMLA Retaliation Claims

Properly identifying the decisionmaker in an employment discrimination case is important because it is the intent of the decisionmaker that determines whether an adverse employment action was motivated by a discriminatory or retaliatory animus. Where an employer can show that the decisionmaker was free of such animus容ither because the decisionmaker was not aware of the employee's protected status or engagement in protected activity葉he employee's claim should fail. Given the right set of facts, however, a plaintiff can avoid this result by utilizing a "cat's paw" theory of liability where the bias of a subordinate not charged with making the employment decision is imputed to the ultimate decisionmaker. As the Supreme Court held in Staub v. Proctor Hospital, a 2011 decision, "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" under the cat's paw theory.

Following the Supreme Court's lead in Staub, the Sixth Circuit has applied the cat's paw theory in a variety of discrimination cases and has assumed, without deciding, that the theory is available in Family and Medical Leave Act (FMLA) retaliation cases. Now, in a 2-1 decision recommended for full-text publication, a Sixth Circuit panel has held that the cat's paw theory applies to FMLA retaliation claims, recognizing that "a company's organizational chart does not always accurately reflect its decisionmaking process," and that sometimes subordinate employees "may have significant influence over the decisionmaker."

Background

In Marshall v. The Rawlings Company LLC, the plaintiff was a cost containment analyst in the Workers' Compensation Division. In 2012, the plaintiff took a two-month FMLA leave of absence for treatment for mental health issues. When the plaintiff returned from leave, she faced a backlog of work and there was conflicting evidence whether she received any help to clear the backlog. There was also conflicting evidence whether backlogs were common for analysts or indicative of a serious performance issue.

Rawlings' Division vice president (VP) told the plaintiff she was consistently falling behind on her work. Even after the plaintiff cleared her backlog, the VP purportedly became concerned that a new one was forming, and recommended to the Division president that she demote the plaintiff from a team lead to an analyst, the position the plaintiff held when she joined the company. The Division president attested that she was the "final decisionmaker" regarding the plaintiff's demotion, and that her decision to demote the plaintiff was based "solely" on her performance. The Division president also attested that she "was not familiar with" the plaintiff's FMLA leave or health conditions when she demoted the plaintiff.

A year later, the plaintiff took a second FMLA leave for mental health issues, and when the plaintiff returned to work she continued to take intermittent leave for treatment. Concerns resurfaced regarding the plaintiff's performance, and those concerns came to a head when the Division director and the plaintiff's immediate supervisor observed that the plaintiff and a co-worker were absent from their desks for most of the day. When the director and supervisor met with the plaintiff and her co-worker to discuss their lack of productivity, the plaintiff denied there was any issue until her supervisor confronted her with reports showing she had been logged off her phone for much of the day. The plaintiff then claimed that her productivity issues stemmed from the VP having harassed her on two previous occasions, once during the demotion meeting when he allegedly belittled the plaintiff's ability to do her job, and again during a lunch with other analysts where he allegedly singled the plaintiff out for questions regarding staff morale. The plaintiff claimed she did not report these incidents because she feared losing her job.

The Division director reported the VP's alleged harassment to the Division president, and met with the plaintiff to discuss the details. The Division president concluded that if the harassment occurred it was not based on any protected status. Instead, she believed that the plaintiff had made the allegations regarding harassment to deflect criticism of her job performance. The Division president reported this to the company's owner, who in turn decided to meet with the plaintiff himself. The owner attested that he terminated the plaintiff during the meeting because he believed she had falsely accused the VP of harassment. He also attested that he did not know the plaintiff had taken FMLA leave or that she had any medical conditions.

The plaintiff sued the owner, alleging that the company had retaliated against her for taking FMLA leave by demoting her to an analyst and then terminating her employment. However, the plaintiff did not claim that the ultimate decisionmakers, the Division president and company owner, were biased against her for taking leave. Instead, the plaintiff attributed this bias to the VP and the Division director, and alleged that the duo influenced the Division president's decision to demote her and then influenced the owner's decision to terminate her.

The district court rejected this argument, finding that while the plaintiff could rely on a cat's paw theory to establish liability, the theory did not apply here because there was no evidence that the VP or the Division director harbored any retaliatory animus. Unable to impute their knowledge of the plaintiff's FMLA leaves to either of the ultimate decisionmakers, the plaintiff could not establish the second element of a prima facie claim of retaliation, namely that the ultimate decisionmakers knew she had exercised her rights under the FMLA.

Sixth Circuit Decision

The plaintiff appealed and the Sixth Circuit reversed, holding that "the cat's paw theory does apply to claims of FMLA discrimination" and that because there was evidence the VP and Division director had exhibited animosity towards the plaintiff for taking leave, the district court erred when it precluded the plaintiff from utilizing the theory to impute this animus to the ultimate decisionmakers. The court found that a question of fact existed whether the VP had influenced the decision to demote the plaintiff for poor performance, noting that the VP initially recommended the demotion to the Division president, she did not clarify what role this recommendation played in her decisionmaking, and there was no evidence the president conducted any independent investigation to determine if the VP's criticisms of the plaintiff's performance were valid. The court found that a question of fact also existed whether the VP and Division director influenced the company owner's decision葉hrough the Division president葉o terminate the plaintiff for allegedly submitting a false claim of harassment, noting that the only information the owner had regarding this accusation came from a meeting with the Division president, a conversation he had with the Division director, and a brief meeting he had with the plaintiff when he terminated her. The court also noted that when the Division president met with the plaintiff to discuss her allegations against the VP, the only other person present was the Division director, and that he testified the owner was considering firing the plaintiff before the owner had met her.

Besides recognizing the applicability of the cat's paw theory of liability to FMLA retaliation cases, the Marshall decision is also significant because it addresses three other issues raised by application of the theory. First, cat's paw liability can be applied where more than one layer of supervision exists between the plaintiff and the ultimate decisionmaker預s was the case with the plaintiff's termination用rovided the plaintiff can show the biased subordinate influenced the intermediate decisionmaker who then unwittingly influenced the ultimate decisionmaker. Second, in analyzing a case where a cat's paw liability is asserted, the district court must first apply the McDonnell-Douglas burden shifting framework to plaintiff's retaliation claim to determine if the claim can survive summary judgment if the theory is applied. If so, the court must then consider whether there is a sufficient factual basis for imposing cat's paw liability. Finally, if the district court finds that the theory applies, the employer may not avail itself of the "honest belief" rule to exonerate the ultimate decisionmaker because the honesty or sincerity of the decisionmaker's belief is irrelevant where that belief is rooted in a biased recommendation from the subordinate employee. The only way for the employer to avoid this result is to show that the subordinate held an honest belief that justified the adverse action, or that the ultimate decisionmaker conducted an in-depth and independent investigation of the bases for such action that enabled them to base their decision on an independent evaluation of the facts.

Practical Considerations for Employers

Although the Marshall court cautions employers that "there is no 'hard-and-fast rule' that a decisionmaker's independent investigation defeats a cat's paw claim," independent fact gathering by the ultimate decisionmaker coupled with the ability to show that the adverse action was "entirely justified" apart from the subordinate's biased recommendation will defeat such a claim. Thus, in those instances where a subordinate supervisor recommends that adverse action be taken against an employee and the ultimate decisionmaker does not have personal knowledge of the factual bases for that recommendation, it is critical that the decisionmaker conduct their own investigation before deciding to take such action. Once that investigation is completed, it is also essential for the decisionmaker to document why they believe such action is warranted independent of the subordinate's recommendation. While this can be a time-consuming process, it not only better positions an employer to defeat a cat's paw claim, but also helps the employer identify those recommendations that may be based on unlawful considerations.

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致e 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痴 content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd痴 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 渡o 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痴 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痴 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痴 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痴 personal data provided to us. This can usually be done at the 添our 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.