On March 1, 2011, the United States Supreme Court issued its unanimous decision in Staub v. Proctor Hospital (562 U.S. ___ (2011)).1 In its decision, the Court clarified the elements necessary for an employment plaintiff to establish liability under the "cat's paw" theory of discrimination or retaliation. This case will likely increase the number of discrimination and retaliation claims brought by employees, as the Court's decision allows a plaintiff to rely on an influential and biased supervisor in proving his claim, even if that biased supervisor was not the ultimate decisionmaker.
Relevant Statute: This case arose under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"). The USERRA prohibits employers from denying "employment, reemployment, retention in employment, promotion, or any benefit of employment" based on an employee's membership in or an "obligation to perform service in a uniformed service." In order for an employee to prevail in a claim under the USERRA, he must demonstrate that his membership in the military was a "motivating factor" in the employer's adverse employment decision.
Factual Background and Procedural History: The plaintiff, Vincent Staub, was employed by Proctor Hospital as an angiography technician. Mr. Staub was also a first sergeant in the Army Reserve, a position that required time off for reserve training. Mr. Staub alleged that his direct supervisor, Janice Mulally, was openly hostile to him due to the inconvenience his reserve training caused for scheduling. Ms. Mulally assigned extra shifts to Mr. Staub as "payback ... for everyone else having to bend over backwards to cover [his] schedule for the Reserves." Mr. Staub's department head, Michael Korenchuk, was also critical of Mr. Staub's military duties, and allegedly made several comments regarding those obligations.
Ms. Mulally issued Mr. Staub a warning ordering him to report to a supervisor whenever he left his work station. A few weeks later, Mr. Korenchuk reported to the VP of Human Resources that Mr. Staub was not at his work station, and that he had not reported to a supervisor (Mr. Staub was at lunch at the time). Based on the previous warning from Ms. Mulally and the report from Mr. Korenchuk, the VP of Human Resources fired Mr. Staub.
Mr. Staub brought a claim under the USERRA. He claimed that his supervisor was biased against him and had influenced the decision of the VP of Human Resources to terminate his employment. This theory, called the "cat's paw" theory of liability, states that an employer may be liable for the discriminatory intent of a biased supervisor, even if the biased supervisor was not the ultimate decision maker, if the employee shows that the employer's decision was influenced by the biased supervisor.2 $57,640 in damages. The employer appealed the jury's verdict to the Seventh Circuit Court of Appeals, which overturned the jury's decision. The Court of Appeals held that liability under the "cat's paw" theory requires an employee to show "a blind reliance, the stuff of 'singular influence.'" The Court went on to state that since Mr. Staub could not prove that Ms. Mulally had been a "singular influence" over the decision made by the VP of Human Resources, the evidence of Ms. Mulally's alleged bias should not have been presented to the jury. The Court concluded that without this evidence, Mr. Staub could not prevail in his claim against Proctor Hospital. The jury found in favor of Mr. Staub and awarded him
Supreme Court's Opinion: The Supreme Court reversed the narrow holding of the "cat's paw" theory set forth by the Seventh Circuit Court of Appeals. The Court concluded that an employer can be held liable for a discriminatory act by an employee (in this case, Ms. Mulally and Mr. Korenchuk), even if the individual making the ultimate decision (in this case, the VP of Human Resources) did not know about the underlying discrimination. The Supreme Court stated that the "cat's paw" theory applies when: (i) a supervisor performs an act motivated by discriminatory animus; (ii) the supervisor intended to cause an adverse action against the employee; and (iii) the discriminatory act is a "proximate cause" of the ultimate employment action. The Court further held that an employer's independent investigation (into the underlying report by the discriminatory supervisor) will not necessarily insulate the ultimate employment action from any discriminatory taint. Though the decision maker may have considered other factors, the biased reports could still remain "a motivating factor" in the decision, thus violating the USERRA.
What this Case Means for Employers: While this case was brought pursuant to the USERRA, the Court specifically noted that statute is similar to Title VII, thus implying that claims under Title VII will be interpreted pursuant to the same standard set forth in this case. Accordingly, a broad range of claims brought by employment discrimination and retaliation plaintiffs will be impacted by this decision.
This case reminds employers that they should not allow decisionmakers (those who make decisions to fire and discipline employee) to rely solely upon the recommendations of subordinates in making their employment decisions. Rather, decisionmakers should conduct thorough and impartial investigations into any allegations made by subordinates, to determine whether the allegations are meritorious. While such an investigation may not entirely shield an employer from liability, it may lessen the likelihood that a court would find that an inappropriate factor was the proximate cause of an adverse employment action. Notably, this decision was unanimous, yet another sign that the Court has a significant interest in protecting the interests of employment plaintiffs. Employers should exercise caution in making any employment decision that could lead to a discrimination or retaliation lawsuit, as developing case law seems to be trending toward protection of employees and plaintiffs.
Footnotes
1. Justice Kagan did not participate in the decision because she had submitted a brief in the case in her previous role as Solicitor General.
2. The "cat's paw" designation arises from a 1990 Seventh Circuit Court of Appeals decision, during which Judge Posner compared an unwitting employer acting at the behest of a biased supervisor to the cat in a fable by Aesop. See Shager v. Upjohn Co., 913 F. 2d 398, 405 (7th Cir.).
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