Wednesday, August 20, 2014

When the cat’s paw strikes retaliation

What happens when a decision-maker acts with an innocent motive, but unwittingly carries out the retaliatory motive of a subordinate? Does the cat’s paw impute the unlawful intent to the otherwise innocent manager or supervisor? In Seoane-Vazque v. The Ohio State University (6th Cir. 8/19/14) [pdf], the 6th Circuit held that while the cat’s paw applies to retaliation claims, it is still bound by the higher but-for causation standard the Supreme Court applied to retaliation claims in University of Tex. S.W. Med. Ctr. v. Nassar.
Following Nassar, “a Title VII plaintiff alleging retaliation cannot establish liability if her firing was prompted by both legitimate and illegitimate factors.” … So long as the untainted factors were sufficient to justify [the] ultimate decision, the University will be entitled to summary judgment.
Thus, in any claim alleging retaliation under Title VII, courts must apply the stricter “but for” causation standard, regardless of the identity of the purported decision-maker. As a result, retaliation claims remain harder for employees to prove, and easier for employers to win on summary judgment.

This all makes for an interesting academic discussion, but once you reach these platitudes of burden of proof and causation, you’ve already lost. You’ve already fired an employee who engaged in protected conduct. You’ve already gotten sued. And, you’ve already spent a tidy sum investigating the complaint, taking discovery, and preparing a (hopefully winning) motion for summary judgment. You’ve spent $100,000 (or more) to justify the termination of a marginal employee. In that case, have you really won?

What’s the safer course of action? Only terminate as a last resort. Treat employees who engage in protected activity with kid gloves. Make an informed decision early in any case whether it is one worth fighting or settling. Better yet, consider severance pay in exchange for a release claims in all but the most egregious of terminations. Nassar’s “but-for” causation standard may shift employers’ decisions to fight over flight in more cases, but employers should resist the litigation urge, which is usually a losing proposition for all. I know this is odd advice coming from a litigator, but a termination decision must be fully informed, and the vast void of litigation costs must be a key part of that decision.