Second Circuit Reinstates Retaliation Claim Based on “Cat’s Paw” Theory

Today, in Vasquez v. Empress Ambulance Service, 15-3239-cv (2d Cir. Aug. 29, 2016), the Second Circuit – in an opinion authored by Judge Calabresi – vacated a lower court’s dismissal of plaintiff’s retaliation claim under Title VII, and explicitly held “that an employer may be held liable for an employee’s animus under a ‘cat’s paw’ theory, regardless of the employee’s role within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim to suffer an adverse employment action.”

In sum, the decision is a win for employees, since it broadens the circumstances under which an employer may be held liable under Title VII – particularly where (as here) the discriminator/harasser is the victim’s co-worker and influences, but does not make, the offending employment decision.

Plaintiff was fired based on (allegedly false) information provided by a co-worker she accused of sexual harassment. After plaintiff sued her employer alleging that it wrongfully terminated her in retaliation for complaining of sexual harassment, defendant moved to dismiss for failure to state a claim. The lower court granted the motion, holding that the co-worker’s “retaliatory intent could not be attributed to Empress and that, therefore, Empress could not have engaged in retaliation against” plaintiff.

Plaintiff sought to recover against her employer under the so-called “cat’s paw” theory of liability. The court explained that theory:

The phrase derives from an Aesop fable, later put into verse by Jean de La Fontaine, in which a wily monkey flatters a naïve cat into pulling roasting chestnuts out of a roaring fire for their mutual satisfaction; the monkey, however, devour[s]. . . them fast,” leaving the cat “with a burnt paw and no chestnuts” for its trouble. [I]njected into United  States employment discrimination law by [Judge Richard] Posner in 1990, the cat’s paw metaphor now refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action. Because the supervisor, acting as agent of the employer, has permitted himself to be used as the conduit of [the subordinate’s] prejudice, that prejudice may then be imputed to the employer and used to hold the employer liable for employment discrimination. [B]y merely effectuating or rubber-stamp[ing] a discriminatory employee’s unlawful design, the employer plays the credulous cat to the malevolent monkey and, in so doing, allows itself to get burned—i.e., successfully sued.

Observing that the Second Circuit “has neither accepted nor rejected the cat’s paw approach,” the court – pointing to the Supreme Court’s recognition and application of the doctrine in a case involving a statute different than, but similar to, Title VII – held that “permitting cat’s paw recovery in retaliation cases accords with longstanding precedent in our Court, in the employment-discrimination context, that a Title VII plaintiff is entitled to succeed, even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the [decisionmaking] process.”

The court next turned to the application of the “cat’s paw” theory in the co-worker harassment context. After reviewing general agency law principles, the court concluded that plaintiff “can recover against Empress if Empress was itself negligent in allowing Gray’s false allegations, and the retaliatory intent behind them, to achieve their desired end.”

It then explained why plaintiff plausibly alleged that her employer was negligent, citing (among other things) that plaintiff “pled facts from which a reasonable person could infer that Empress knew or should have known that Gray’s accusations were the product of retaliatory intent and thus should not have been trusted” and that her employer “chose to ignore … warning signs and instead blindly credited Gray’s assertions, obstinately refusing to inspect Vasquez’s phone or to receive any other evidence proffered by Vasquez in refutation.” Therefore, “a reasonable jury could find that Empress acted negligently in terminating Vasquez solely on the basis of Gray’s accusations.”

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