In the previous post Can I Quit, I introduced Jane an employee, Skippy her manager, Dan senior upper management official and Marcia upper-management official. I also introduced the XYZ Co. that they all work for. Check out the post for the details of the hypothetical case we are discussing. Here I am going to discuss this doctrine that has evolved in the Courts called Cat’s Paw and a little more about the case.
Cat’s paw is a phrase that came about from poet La Fontaine’s 1679 fable, “The Monkey and the Cat”. Who would have thought controlling law today would be built upon a fable from 1679. The fable itself is about a little monkey who convinces a cat to pull chestnuts out of the fire. As the cat pulls each chestnut out, burning his paw in the process, the monkey takes them and gobbles them all up. In the legal world, cat’s paw was built upon this fable. In essence, when one person uses another to accomplish his purpose.
In employment law, the Courts are recognizing this Cat’s Paw Theory in an aid to help employees prove retaliation. However, lawyers being what they are have managed to turn the Cat’s Paw Theory into a way to escape liability as well. An employee can show it was someone other than the person who made the final decision by arguing Cat’s paw theory. If the employee can persuade the Court and jury that the decision maker was used by the other person to discriminate or retaliate they can succeed. On the other side of the coin, if the employer can show that the decision maker made their own independent findings and had no reason to retaliate then the employer can escape all liability even if discrimination and retaliation are proven to have happened by the other person.
Sounds all twisted doesn’t it? Well it has become just that. The Courts across the country all handle this theory differently. It has become such a split that the Supreme Court has decided to hear a Cat’s Paw Theory case to set the record straight, so to speak.
We have laws that specifically dictate that discrimination and retaliation are not allowed. Title VII covers those discrimination and retaliation laws. Now Title VII is just one part of the Civil Rights Act of 1964. The entire act is made up of eleven different Titles. The goal was to stamp out discrimination. Retaliation itself would be added later. Over the years the Civil Rights Act has been amended to add different types of discrimination and retaliation. The Courts have interpreted the laws covered by the Civil Rights Act and applied them to employers and employees.
In 1991, Congress amended the Civil Rights after an opinion by the Supreme Court that Congress felt was contrary to the intent of the Civil Rights Act. The thing about Congress is that they try to inact laws to cover everyone and sometimes in doing so they leave so much gray area that lawyers manage to persuade the Courts that Congress’ intent was different from what the written word says. All laws can be manipulated in this way. The gray area can always be manipulated and lawyers, well they are astounding at that ability. One of the reasons people dislike lawyers so much is that the common person reads the black and white words and then is amazed when they aren’t applied like they are written. The common person finds the lawyers unethical or devious for twisting the laws to win their cases. When it is for good people are ok, but when it gets murders off or allows employers to discriminate or allows pedophiles back on the street, the common person gets upset.
Here is a little recap of Jane’s case. Jane felt her former supervisor was discriminatory to women and complained to the EEOC informally. Mediation failed and Jane decided to file a formal complaint with the EEOC. Jane’s employer had moved her away from the supervisor but later decided to move Jane under the manager’s who oversaw both the supervisor and Jane when the discrimination occurred. Skippy one of the managers was upset Jane named him in her EEOC formal complaint and had begun taking questionable actions against Jane.
Now we can roughly forget about the discrimination by the supervisor because Jane realized she couldn’t prove discrimination under the law. Although she believed it was discrimination, the proof she had wasn’t enough to hold her employer XYZ Co. responsible for what had occurred. All that remains for the Court to decide is whether or not Skippy retaliated by writing up false reports and exaggerating legitimate interactions in a negative light to be used by Marcia to have Jane terminated from her job.
Had XYZ Co. watched over their managers and discouraged retaliation they would be in the clear and there would be no court case at all. The discrimination charge would have fallen away as being unprovable and that would have been the end. However, that is not what happened. Since there was retaliation XYZ Co. still ends up in court even though they are in the clear on the discrimination charges.
Jane complained of Skippy’s actions long before the termination occurred and the senior management official, Dan, felt Jane should be moved away from Skippy. Dan never investigates the retaliation allegations made by Jane. Dan simply wants to move Jane away from Skippy. Now it is possible Dan intended on investigating but Jane was terminated before that came about. It is possible Dan was doing what any good employer would do and that was separating Jane and Skippy and then investigating. Dan never speaks up after the termination so we have no idea what Dan was intending to do, we can only assume.
We do know Dan ordered Marcia to explore this transfer and gave Marcia the complaints Jane had filed. Jane in her frustration had written her complaints in a less than civil manner but had been talking with Dan in the same manner for months, not out of disrespect but out of frustration for the situation going on. Marcia however saw Jane’s complaints as disrespectful and irresponsible statements and decided to punish Jane instead of transferring Jane. Marcia went to the Skippy and collected all the information he had and used it to terminate Jane. However, it wasn’t just Marcia’s decision. Marcia merely recommended Jane be terminated. Enter another upper-management official, we shall call him Peter, who actually made the final decision to terminate Jane.
So if you have been following along we have Jane, employee. Skippy, manager who retaliated. Dan, senior upper-management official who received Jane’s complaints and wanted her transferred. Marcia, upper-management official who received same complaints and wanted Jane punished and used Skippy’s reports to do it. Now Peter, upper-management official who agrees with Marcia that Jane needs to be terminated and signs the actual termination. Wow a lot of players in this horrid little game.
The Argument by XYZ Co.
XYZ Co. comes in and argues they shouldn’t be liable because Marcia and Peter are unbiased and have no reason to retaliate and Jane can’t prove Marcia and Peter retaliated. Their lawyer tells the Court the case should be dismissed. Essentially, their lawyer says that Jane is just a bad employee. They go further to add that even if Cat’s paw theory applied, Marcia and Peter investigated the misconduct Jane was alleged to have committed so the case should still be dismissed.
Their lawyer fails to mention that the entire termination is based solely on Skippy’s reports. Skippy the manager that Jane has always alleged was the one doing the retaliating. Seems a little devious on the lawyer’s part to leave that pertinent fact out when asking the Court through Summary Judgment to dismiss the case entirely.
Jane argues that Skippy retaliated by writing false reports and exaggerating legitimate incidents in a negative light. She further argues that Marcia failed to transfer her as instructed by Marcia’s superior Dan, giving Skippy even more opportunities to write false reports. In a twist, Jane also argues that Marcia and Peter are not completely unbiased as XYZ Co. says they are. Jane argues that Marcia and Peter finding her complaints of retaliation to Dan as one of the causes to terminate her shows they have a bias against Jane for complaining of retaliation. Dan the most senior upper-management official saw no cause to discipline Jane for the complaints of retaliation she made.
Cat’s Paw Theory
The theory is an odd little duck when it comes to Jane’s case. Normally, the decision maker is unbiased and in most cases not even aware the employee has an EEOC complaint or has complained of retaliation at all. The decision maker is completely in the dark to the nefarious activities going on. The employer escapes liability by showing the court that even if Skippy retaliated the decision maker had no idea the reports were false, Jane had an EEOC complaint or was complaining of retaliation and investigated the reports and found that misconduct had occurred so the employer shouldn’t be liable.
Application of the cat’s paw theory in this case doesn’t really apply in the manner it was intended because the decision maker was aware of Jane’s EEOC complaint and was aware Jane was complaining of Skippy retaliating. Jane wants the employer held responsible and doesn’t believe the employer should get to use Cat’s paw theory to escape liability. Jane doesn’t argue that the employer investigated the alleged misconduct, she argues that the decision makers should have investigated the complaints of retaliation before relying solely on Skippy’s reports to terminate her. Had the decision makers investigated the complaints of retaliation they would have seen Skippy’s nefarious motive to retaliate against Jane and wouldn’t have terminated her. It is sort of a quasi cat’s paw theory.
The 11th Circuit, which Jane’s case is in, has held that if there is a causation between the decision makers decision and Skippy’s retaliatory acts then she can proceed to a jury to allow the jury to decide. The 11th Circuit has also held that if the decision maker investigated independently then the employer escapes liability. Not all Federal Circuits see it the same way. In addition, there is no standard for what “investigated independently” is. In some cases, just allowing the employee to tell their side of the story is enough to allow the employer to escape liability.
Jane’s argument is essentially, the decision makers had a duty to investigate the allegations of retaliation before solely relying on Skippy’s reports and since they didn’t they should be held liable if she can prove Skippy was retaliating.
My Take On It
I believe the cat’s paw theory was a good thing for employees. We all know that it is usually the manager or supervisor that does the offending illegal deed. Rarely is it some higher upper-management official that has no interaction with the employee. You would think the Courts would recognize this and stop applying this only the decision maker standard. Congress wants no discrimination in the work place. In order to help employees complain of the discrimination to stamp it out, Congress added no retaliating against the employee for complaining. It is really simple or should be. If retaliation is a motivating factor in the decision then it should be illegal period. It shouldn’t be that retaliation is ok as long as the person who signs their name on the termination had no reason to retaliate.
Under this current, only the decision maker scenario, employers could open up retaliation mills in their company. In XYZ Co. only three people have the authority to be decision makers. So in effect only three people represent the employer and if the retaliation wasn’t at the hands of one of 3 people then the employer is safe. Forget about the 18 managers and 42 supervisor who most likely would be the ones to retaliate, they are free to do whatever they want because they have authority to report on the employee but not the final authority to actually terminate.
This is not what Congress intended. Why would any employee report discrimination if they know they will face retaliation and have no protection because the employer can set up a system where only a select few can be held responsible? This will discourage employees from reporting discrimination not encourage it.
Congress did give employers some protection. Congress included a way for employers to escape liability. If an employer can show they would have take the same action but for the retaliation then the employer is free. The Courts use a reasonable employer standard. Now the employer has created this new way to escape liability, one Congress never intended or gave them. Congress was clear, no retaliation by the employer. Congress never said no retaliation by the decision maker, the law says no retaliation by the employer. The lawyers have managed to persuade the Courts that Congress meant it to only be the decision makers.
Next up is a post on the Supreme Court case of Staub vs. Proctor Hospital that involves the cat’s paw theory.