Employment Discrimination Jury Verdict Upheld

In Krause v. Kelahan, 2021 WL 5876678 (N.D.N.Y. Dec. 13, 2021), the court held that plaintiff’s hostile work environment claim was supported by sufficient evidence to support the jury’s verdict.

From the decision:

Although Krause’s hostile work environment claim is a closer question, that claim, too, was supported by enough evidence to justify the jury’s verdict. Plaintiff testified concerning repeated criticism and cutting remarks from Kelahan for the entire duration of her employment. Although criticism on its own may not necessarily rise to the level of a hostile work environment, in this case those attacks were especially personal, including harassment concerning her fitness as a parent and a general disregard for her emotional well-being. The Court sees no issue with the jury finding a hostile work environment under these facts.

However, defendants do raise one argument that merits closer scrutiny. Specifically, defendants argue that the School Board and the District should not have been held liable for Kelahan’s alleged misconduct because the facts of this case do not allow for “cat’s paw” liability. Although that line of argument was one of the several raised only in defendants’ affidavit and reply brief, if that argument has merit it could, perhaps, amount to a fundamental error notwithstanding defendants’ procedural failures. The Court will therefore consider this argument all the same.

The cat’s paw theory to which defendants refer allows for an employer to be held liable if a supervisor subjects a plaintiff to an adverse action because the supervisor has been manipulated into taking that action by a subordinate with a discriminatory motive. Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 272 (2d Cir. 2016). However, if the supervisor relied on information passed onto him or her in good faith and in the absence of negligence, the cat’s paw theory cannot apply. Id. at 275.

According to defendants, there can be no cat’s paw liability here because the School Board acted in good-faith reliance on Kelahan’s recommendation. But even if the Court sets to one side defendants’ failure to specifically cite any record evidence in support of that good faith, that argument would still fail. Cat’s paw liability never played a role in this case, because Kelahan’s animus could have been imputed directly to the School Board, and by extension the District.

After all, an employer may be held directly vicariously liable for a supervisor’s misconduct with no need to resort to the cat’s paw theory. See Vance v. Ball State Univ., 570 U.S. 421, 428-29, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013). And an employee is a supervisor if the employer has empowered him to take a tangible employment action against the plaintiff, including “hiring, firing, failing to promote, reassignment … or a decision causing a significant change in benefits.” Id. at 431, 133 S.Ct. 2434.

That shoe does not appear to fit Kelahan at first glance. After all, he could only make recommendations to the School Board; it was up to them to decide whether to hire, fire, or discipline Krause. However, when an employer attempts “to confine decision[-]making power to a small number of individuals,” the employer “may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendation it relies.” Vance, 570 U.S. at 447, 133 S.Ct. 2434. Accordingly, the recommending employee amounts to a supervisor, and any discriminatory animus found attributable to him can be imputed directly to the employer, no cat’s paw required. See id. at 431, 447, 133 S.Ct. 2434.

The rationale behind this rule is not hard to grasp. After all, in its absence, employers would be incentivized to cabin all hiring, firing, and disciplinary decisions to a set, detached cadre of decisionmakers. These decisionmakers could then rely on the recommendations of other employees, laundering any impermissible animus and shielding the company from any liability except where there were obvious red flags to warrant closer scrutiny into a subordinate’s recommendation. Through a simple act of corporate restructuring, anti-discrimination statutes would find themselves suddenly toothless.

These facts meet Vance’s standard and are supported by its rationale. There was ample evidence that the School Board deferred to Kelahan’s recommendations concerning terminations, including plaintiff’s. That is precisely the sort of dynamic that the Supreme Court identified as effectively delegating supervisory authority. Vance, 570 U.S. at 447, 133 S.Ct. 2434.

And carrying the analogy out into a more traditional business setting, not imputing Kelahan’s animus to the School Board would be tantamount to not imputing a C-level employee’s animus to a corporation simply because a decision he or she makes must first pass before the board of directors. Vance’s delegation theory was conceived specifically to prevent that outcome. 570 U.S. at 446-47, 133 S.Ct. 2434 (noting that employer that confines decision-making authority to few individuals would result in delegation in response to argument that companies would be incentivized to limit decision-making to few individuals to prevent liability). Therefore, the Court did not err in holding that Kelahan was a supervisor and directly imputing any animus on his part to the School Board and the District. Defendants’ Rule 50 motion must therefore be denied.

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