“Cat’s Paw” Theory of Liability Expanded

A kitten pawing at the screen.

The Sixth Circuit Court of Appeals recently expanded the use of the “cat’s paw” theory in FMLA retaliation cases and flatly disapproved of the use of the “honest belief” defense by employers. Marshall v. Rawlings Co. LLC, (April 20, 2017, CA6). The latter theory is used to try to insulate the employer from liability when the decision maker has an honest belief that the action at issue was warranted for valid misconduct and/or performance reasons.

As recounted by Justice Scalia in his opinion for the Supreme Court in Staub v. Proctor Hospital, 562 U.S. 411, 415 n.1 (2011) (and as we reported on in 2011 when this case was published), the term derives from a fable about a monkey who uses flattery to con a naïve cat to pull chestnuts out of a fire, and then eats the chestnuts when the cat’s paw is burned. “Today… ‘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.” E.E.O.C. v. Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 484 (10th Cir. 2006).

In the case before the Sixth Circuit, the employee took FMLA leave in February and March 2012 to receive treatment for depression, anxiety, and PTSD. Upon her return, she had a backlog of work waiting for her, for which she said she received no assistance. She was demoted in September 2012 by the division president, after a recommendation by her supervisor. The president stated that she was the final decision maker and the demotion was solely due to performance. During the next year, the employee took more leave in March through August. She was recommended for termination by another supervisor in September for being away from her desk and making a false claim of harassment against a supervisor. Again, the matter was personally investigated by the same president, who then recommended to the owner that he fire the employee for making false harassment claims.

The Sixth Circuit first held that the rationale for the cat’s paw theory applies equally to FMLA retaliation claims as to other types of discrimination and retaliation claims. It further held that there was no reason to limit the use of the theory to just the first layer of supervision, as the same justifications exist for the theory’s application through more remote layers of supervision. Finally, addressing the honest-belief rule, the court observed that the crux of the theory is that a biased subordinate intentionally manipulated the decision maker. Under these circumstances, the decision maker’s intent is not relevant and therefore the honesty of the his/her belief simply does not matter.

What this means to you: This decision emphasizes that good performance management by first line supervisors and managers is essential to preventing lawsuits. Adverse action recommendations by supervisors who do not exercise good performance management practices are easily challenged, and it is very difficult for upper level managers to “rescue” a questionable case by doing their own investigation and coming to an independent decision. This has been the focus of Fair Measures Managing Within the Law training programs for decades, training supervisors and managers at every level that good performance management practices, which include partnering with Human Resources, prevent wrongful action, discrimination, harassment and retaliation cases and enhance productivity in a Respectful Workplace.

Help your employer meet its requirements under the law and FEHA regulations by contacting us today at 800-458-2778 and booking Managing Within the Law training for your supervisors.

Posted 05-02-2017

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2017-05-02T21:01:35+00:00

About the Author:

Steve Duggan graduated from the Law School at the University of Notre Dame while on active duty in the Air Force. He has extensive experience representing management litigating cases of wrongful termination, employment discrimination, and sexual harassment. Steve also has experience in all phases of administrative litigation of unfair labor practice charges, and class and individual complaints of employment discrimination. He has been an instructor of seminars for supervisors and managers on labor management relations and other personnel issues, and for lawyers in basic and advanced trial advocacy courses. Steve came on board with Fair Measures in 1998.