Wednesday, November 26, 2008

The “Cat’s Paw” is alive and well in the 6th Circuit -- Pro se plaintiff’s trial win affirmed by Sixth Circuit

File this case under the category of never underestimate your opponent. The 6th Circuit has affirmed a trial court’s $120,000.50 verdict in a race discrimination case in which the plaintiff appeared pro se (without an attorney). In Madden v. Chattanooga City Wide Service Dept. (6th Cir. 11/25/08), the plaintiff was fired by management after a supervisor reported him for setting off firecrackers at a work site. The problem for the employer is that the plaintiff happened to be black, and he knew of two white employees who had done the exact same thing without being reported by the same supervisor.

The appellate court was unfazed by the fact that the person with the discriminatory animus, the reporting supervisor, was not the ultimate decisionmaker in Madden’s termination. Instead, the Court imputed the supervisor’s animus to the decision makers under what is known as “cat’s paw” liability. Cat’s paw liability is when an adverse employment decision is made by a person who lacks impermissible bias, but was influenced by another individual who was motivated by such bias.[1] The court found that the employer was liable because the supervisor discriminatorily decided which employee to report for identical misconduct.

There is the problem posed by the fact that Madden was fired not by his supervisor, Templin, but by senior managers—Templeton and Leach—who were unaware of incidents in which white workers set off fireworks without facing discipline. … We have held that when a plaintiff challenges his termination as motivated by a supervisor’s discriminatory animus, he must offer evidence of a “causal nexus” between the ultimate decisionmaker’s decision to terminate the plaintiff and the supervisor’s discriminatory animus. … In the instant case, there was an investigation of the events for which Madden was fired, which was conducted by Boyd and Templeton. This investigation led to Templeton’s recommendation that Madden be fired, which Leach accepted. … There was evidence that Templin discriminated in the information that he provided about employee misconduct to senior managers by reporting the misconduct of a black employee, but not the virtually identical misconduct of white employees. By relying on this discriminatory information flow, the ultimate decisionmakers “acted as the conduit of [the supervisor’s] prejudice—his cat’s paw.”

Because the decisionmaker acted on the supervisor’s word, without any additional investigation, the court imputed the supervisor’s animus to the decisionmaker.

There are two important lessons for employers to take from this case:

  1. Never underestimate your opponent. It’s impossible to know whether Chattanooga acted out of hubris in taking this case all the way to trial. What we do know is that bad facts are bad facts, whether or not the plaintiff is represented or acting pro se.

  2. As long as cat’s paw liability is a valid theory of discrimination, it is imperative that decisionmakers verify the information upon which they are relying. Unless the decisionmaker has first-hand knowledge of the reasons justifying the action, he or she should undertake some investigation and independently verify that the decision is the result of a legitimate non-discriminatory reason and not an unlawful animus.

The Blawg is taking the rest of the week off for the Thanksgiving Holiday. Everyone enjoy your turkey. I’ll be back on Monday with thoughts on the aggressive advertising campaign started by labor organizations in support of the Employee Free Choice Act. What I’m Reading This Week will return next Friday with a supersized edition.

[1] “Cat’s paw” derives from a fable in which a monkey tricks a cat into scooping chestnuts out of a fire so that the monkey can eagerly gobble them up, leaving none left for the cat. It generally describes a situation where one is unwittingly manipulated to do another's bidding. See Read Book Online.