Thursday, May 4, 2017

6th Circuit says you can’t spell “cat’s paw” without F-M-L-A


It’s been six year since the Supreme Court decided, in Staub v. Proctor Hosp., which validated the “cat’s paw” as a valid theory of liability in discrimination cases. The “cat’s paw” seeks to hold an employer liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker.

An open issue in Staub‘s wake is whether other employment laws also apply the cat’s paw. For example, what about the FMLA? In Marshall v. The Rawlings Co. (4/20/17), the 6th Circuit concluded that the cat’s paw does apply in FMLA retaliation cases.

Rawlings fired Marshall after her return from a second FMLA leave after Marshall’s in-house counsel reported to the company’s president (and the ultimate decisionmaker in Marshall’s termination) that Marshall had made false allegations of harassment to deflect allegations from her immediate supervisor that she had not been doing her job. Rawlings did not claim that the in-house counsel or president were biased against her because of her prior FMLA leave, but that her immediate supervisors, who reported her poor performance, were. Thus, the court had to decide if the cat’s paw imputed their alleged FMLA animus to Rawlings’ president.

The 6th Circuit had little trouble deciding that “the cat’s paw theory applies equally to FMLA retaliation claims as to other types of employment discrimination and retaliation claims.”
The primary rationale for the cat’s paw theory of liability is that, because “a company’s organizational chart does not always accurately reflect its decisionmaking process,” an employee of lower rank may have significant influence over the decisionmaker. … Because there is just as much possibility of lower-level supervisors influencing decisionmakers to engage in FMLA discrimination as discrimination based on race, gender, military service, or age, it makes sense to apply the cat’s paw theory to FMLA claims.
The Court made three additional observations:
  1. Layers? The cat’s paw theory of liability applies in situations involving more than one layer of supervision between the plaintiff and the ultimate decisionmaker. 

  2. McDonnell Douglas? Plaintiffs alleging FMLA retaliation based on a cat’s paw theory of liability must satisfy the requirements of the McDonnell Douglas framework and prove that the decisionmaker was the cat’s paw of a biased subordinate.

  3. The Honest-Belief Rule? The honest-belief rule (which holds that an employee cannot establish pretext based on an incorrect decision as long as the employer held an honest belief in its proffered nondiscriminatory reason) does not apply in cat’s paw cases, because the honest belief of the decisionmaker is irrelevant to the motive of the biased lower-level employee.
All of this is intellectually interesting, but what does it all mean practically to you and your employment decision? 
  1. No Bigots: You better know who you have managing and supervising your employees. Companies do not make personnel decisions in a vacuum. Executives often rely on the front-line managers and supervisors for advice on who and when to discipline or fire. Yet, under Staub, businesses are on the hook for the discriminatory animus of these managers and supervisors, even if they have nothing to do with the ultimate decision. You never want a bigot managing your employees. The cat’s paw, however, provides employers added incentive to purge them from your managerial ranks.

  2. Training: If employers will be liable for the animus of managers and supervisors in all but the most unconnected of decisions, then businesses should get started training those managers and supervisors on their EEO (and FMLA) responsibilities. If courts will hold you responsible for their actions, don’t you want some peace of mind that you did everything you could to guide those actions?

  3. No Rubber Stamps: Courts will not protect a decisionmaker’s paper review of a decision without an independent investigation. Thus, instead of relying upon the recommendation of another, the actual decision maker should take such steps as interviewing the affected employee, independently interviewing other key witnesses, and personally reviewing relevant documents.

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