Third Circuit delivers a cat’s paw gouging to employers

Note: The original working title for this post was “Yo! A-Yo! Federal courts in Philly and NYC get all catty and stuff”. I mention this not because it’s a recycled New Yorker headline, but because it puts into context the gratuitous shots I take at NY sports teams sprinkled into this post.

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Back in March of this year, the United States Supreme Court in Staub v. Proctor Hospital recognized that an employee may have a tenable claim for discrimination under USERRA even if the person who fired him did not discriminate. That is, if a supervisor’s bias motivates a firing — even if the firing is carried out by someone else who is both squeaky-clean and higher up in the food chain — then the firing is discriminatory. This is known as the “cat’s paw” theory.

Same goes for the MetsSince March, other courts have weighed in. As you know from reading this blog, on June, the Tenth Circuit held that the Staub decision applies to claims of age bias.

And, this month, we get cat’s paw decisions from the United States District Court for the Eastern District of New York and the Third Circuit Court of Appeals. One of ’em is good for employers. The other, not so much. More on these decisions and what they will mean for local businesses after the jump…

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First, the good news. 

On August 4, United States District Court for the Eastern District of New York held that employee animus (as opposed to supervisor bias) cannot form the basis for cat’s paw liability. No real surprise there as employees have little, if any influence, on the ultimate decision to fire.

Now, the bad. 

Yesterday, the Third Circuit Court of Appeals held that when:

  1. a biased supervisor recommends firing an employee;
  2. a non-biased individual investigates and also recommends the firing; and
  3. the employee is fired by another non-biased decision-maker,

then the intervening investigation does not automatically sever the causal connection between the first supervisor’s bias and the ultimate decision to terminate. This is because a jury could find that the supervisor’s bias led the investigator to recommend termination. And this comports with Staub, which declined to adopt a “hard-and-fast rule” that an independent investigation would be sufficient to negate the effect of a non-decisionmaker’s discrimination.

So what’s the solution? Good question.

As noted in Staub, to avoid the taint of the cat’s paw, the employer’s independent investigation, which results in an adverse action, must be for reasons that are unrelated to the supervisor’s original biased action.

How can this be done?

The investigator must conclude that the firing, apart from the supervisor’s recommendation, was entirely justified. This is easier said than done, especially if the investigator is relying upon documents that the biased supervisor has furnished. Or maybe the investigator believes that the biased supervisor is more credible than the employee who is the subject of the investigation.

As Baby Bear would say — that’s the character from the same episode of Sesame Street that my two-year-old forces me to watch day, after day, after day: “This is one humdinger of a stumper.”

“Doing What’s Right – Not Just What’s Legal”
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