Cat’s Paw Theory:
The
term Cat’s Paw comes from an old fable in which a conniving monkey convinces a
cat to reach into a fire to get roasting chestnuts. The cat is duped, burns its
paw and the monkey enjoys the chestnuts with no harm. In the employment
discrimination context, ‘cat’s paw’ refers to a situation in which a biased
subordinate, who lacks decision making power, uses the formal decision maker as
a dupe in a deliberate scheme to trigger a discriminatory employment action.” (
EEOC
v. BCI Coca-Cola Bottling
Co. of Los Angeles,)
450 F.3d 476, 484 (10th Cir. 2006).
The
Sixth Circuit in the case of
Marshall v The Rawlings Company LLC,
No. 16-5614, used the Cat’s Paw Theory to reverse the district court’s
dismissal of the summary judgment motion of the plaintiff’s claims of Family
and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA)
retaliation claims. The matter was remanded for further proceedings.
FACTS:
The
Rawlings Co. LLC provides recovery or “cost containment” services to health insurance
providers. Plaintiff Gloria Marshall began working as a workers’ compensation
analyst for Rawlings in 2006. She was promoted to team leader in 2011.
Marshall
suffers from depression, anxiety and posttraumatic stress disorder. She
unexpectedly took leave under the FMLA, 29 U.S.C. §§ 2601-54, in February and
March 2012 to address her acute mental health problems.
Demotion:
Vice
President Jeff Bradshaw, concerned about Marshall’s performance, which he
viewed as unsatisfactory, recommended to Laura Plumley, President of the
Division, that Marshall be demoted from team lead to analyst. Without
independent investigation, she agreed. Bradshaw and Mike Elsner, Marshall’s
second level supervisors, met with her and she was demoted in September 2012.
She claimed that in the month before her demotion, Bradshaw sarcastically asked
if she would be out on leave any time soon and during the demotion meeting,
Bradshaw raised his voice and belittled her. Marshall
took periods of FMLA leave intermittently from March 2013 through August 2013.
At
a May 2013 celebration lunch for Marshall and four other analysts with the
highest first-quarter recoveries, Marshall claimed that Bradshaw bullied her.
Productivity Problems:
On
Sept. 23, 2013, Elsner confronted Marshall about her productivity after
observing she hadn’t been at her desk for a large portion of the day. When
Elsner asked Marshall about it, she claimed that she had been harassed by
Bradshaw and that she hadn’t reported the harassment because she was afraid of
being fired. Elsner, required to report the allegations of harassment, did so.
After
meeting with Elsner and Marshall to discuss the allegations, Laura Plumley,
president of the division, stated that she didn’t believe Bradshaw’s alleged
harassment was actionable and that it was her impression that Marshall “was not
doing her job, had been called on the carpet by her supervisor, and in order to
deflect it, brought up the allegations of harassment against Bradshaw.”
Plumley
reported her conclusions to George Rawlings, the company’s owner. Rawlings then
met with Marshall and decided during the meeting to terminate Marshall after
concluding that Marshall was making false allegations of harassment “in order
to avoid the consequences of her own excessive absences.” Rawlings later
claimed that he was unaware at the time that Marshall had ever taken any FMLA
leave or that she had any medical conditions.
ANALYSIS:
Reviewing the facts of the case,
the Sixth Circuit held that the cat’s paw theory applies equally to FMLA retaliation
claims as to other types of employment and retaliation claims. The cat’s paw
theory accomplishes two goals:
- It addresses situations where the decision
makers adopt the recommendations of their biased lower-level supervisors,
and
- It stops the option for employers who try to evade
liability through willful blindness to the source of reports and
recommendations.
Once the court decided to apply the
cat’s paw theory of liability to FMLA retaliation claims, it considered the
following three questions:
- Does the theory apply in situations involving more
than one layer of supervision between plaintiff and the ultimate decision
maker?
Yes. Here lower level
supervisors Bradshaw and Elsner influenced intermediate supervisor Plumley who
then, oblivious to and adopting the subordinates bias, influenced the big boss,
Rawlings. The court: “there is no reason to forbid plaintiffs from pursuing a
theory that a lower-level supervisor carried out a scheme to discriminate by
influencing multiple layers of higher-level supervision."
- What is the relationship between the McDonnell
Douglas burden shifting framework and cat’s paw liability?
Under
this framework—1) plaintiff has the burden to make a prima facie case of
discrimination; 2) having done so, the defendant must show a non-discriminatory
reason for the firing or demotion; and 3) if the defendant provides a
non-discriminatory reason, the plaintiff must show that the reason given was
pretext or had no basis in fact, didn’t provoke the termination or wasn’t
sufficient to call for termination.
Those
using the Cat’s Paw theory must satisfy the requirements of the McDonnell
Douglas burden shifting.
- How does the
honest-belief rule apply to the cat’s paw theory of liability?
Under the
honest-belief rule, if an employer has an honest belief in its
nondiscriminatory reason for discharging an employee, the employee cannot
establish that the reason was an excuse simply because it is incorrect.
Yet, under the Cat’s
Paw liability, the honesty of the decision maker’s belief is irrelevant.
What is relevant is that the belief is rooted in a biased recommendation. Under
this theory, the allegation is that the biased subordinate intentionally manipulated the decision maker.
The court
noted that evidence of bias isn’t always sufficient to prove a
cat’s paw theory. The traditional tort-law concept of proximate cause applies.
An independent investigation
defeats a
cat’s paw claim only when the investigation determines that the adverse action
was,
apart
from the supervisor’s recommendation, entirely justified.
Applying the three questions to
the facts of this case, the court concluded that there were genuine disputes of
material fact as to whether Bradshaw and Elsner were biased against Marshall
and sought to have her demoted and then fired. On the record presented, the
court held that a reasonable jury could conclude that Plumley and Rawlings
didn’t conduct an independent investigation and merely served as the conduit
for their subordinate’s retaliatory intent.
Therefore, the court reversed the
district courts grant of summary disposition on the FMLA and ADA retaliation
claims, while upholding the dismissal of the FMLA interference and the
intentional infliction of emotional distress claims.
Labels: ADA, Americans with Disabilites Act, appeals, Court of Appeals, employment discrimination, Family and Medical Leave Act, FMLA, McDonnell Douglas burden shifting, Michigan, Michigan Appeals, Speaker Law Firm
