"Cat's Paw" doctrine applies to claims of age bias

June 3, 2011
By Eric B. Meyer on June 3, 2011 6:00 AM | | Comments

Wednesday night was crazazy, yo!

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I had this dream that was I slaloming down a snowy mountain towards a giant fortress under a hail of gunfire. But the next thing I know, I wake up and I'm falling down this elevator shaft. And, just as I'm about to bite it, I find myself in a car submerged underwater, having just taken a 100-foot fall from the bridge above.

And then I'm in my bed. 

It's 3 am and I am dripping sweat. I tap the Joe Beimel bobblehead on my nightstand -- I know I shouldn't have told you about my totem but, damnit, I love my readers.

Just as I'm starting to get my bearings, what hit me next was ten times as powerful as any three-tiered Inception dream and it kept me up for the rest of the night:

Could the United States Supreme Court's decision in
Staub v. Proctor Hospital, in which the Court affirmed the
theory of subordinate bias -- or "cat's paw" --  in an
action under USERRA, equally apply to claims brought
under the Age Discrimination in Employment Act (ADEA)?

But, oh hells-to-the-yeah, the Tenth Circuit, sensing my angst, issued an opinion on Thursday answering all of my questions. So, while I grab my meds, you hit the jump and find out if the cat's paw doctrine applies to ADEA claims.

* * *

USERRA and ADEA -- same, but different.

Just as USERRA makes it unlawful to discriminate against those who serve our country, the ADEA makes it unlawful to discriminate based on age. However, in 2009, the Supreme Court raised the bar on age claims when it held that a plaintiff can only prove age discrimination if he can demonstrate that an employer took adverse action 'because of' his age. That is, age was the reason that the employer decided to act. Conversely, under USERRA (and Title VII), a plaintiff need only prove that bias was a motivating factor in an adverse employment action. 

Earlier this year, the Supreme Court expanded the scope of USERRA when it held that even if a subordinate's anti-military animus motivates a final decision-maker -- without a discriminatory bone in her body -- to terminate an employee based on the subordinate's bias, then the employer can be held liable under USERRA under the "cat's paw" theory.

Cat's paw applies to age claims.

USERRA's "motivating" test is a much more lenient than the ADEA's "because of." No matter, according to the Tenth Circuit in Simmons v. Sykes Enterprises, Inc., which opined that the cat's paw theory may apply to ADEA claims:

[T]he underlying principles of agency upon which subordinate bias theories are based apply equally to all types of employment discrimination discussed here. Indeed, this circuit has applied the subordinate bias doctrine to cases arising under both Title VII...and the ADEA. (citations omitted).

"But for" still applies to age claims under a cat's paw theory.

In an ADEA cat's paw case, the plaintiff still must prove that a subordinate's age bias was the "but for" reason a final decision-maker fired him. In Simmons, the plaintiff could not meet this burden. However, the court did provide a few examples of how the cat's paw theory could carry the day for an ADEA plaintiff:

    • A biased supervisor falsely reports that the plaintiff violated the company's policies, which in turn leads to an investigation supported by the same supervisor and eventual termination by the final decision-maker.
    • A biased supervisor may write a series of unfavorable periodic reviews which, when brought to the attention of the final decision-maker, serve as the basis for disciplinary action against the employee.

However, where undisputed evidence in the record supports the employer's assertion that it fired the employee for its own unbiased reasons, the plaintiff's age may very well have been in play--and could even bear some direct relationship to the termination if, for instance, a biased supervisor participated in the investigation or recommended termination--but age was not a determinative cause of the employer's final decision.