The U.S. Supreme Court Nov. 9 asked the Justice Department for its views on whether the court should review the circumstances under which an employer may be held liable for discrimination under the Uniformed Services Employment and Reemployment Rights Act based on a “cat's paw” theory that the nonbiased ultimate decisionmaker was influenced by a supervisor with anti-military animus (Staub v. Proctor Hosp., U.S., No. 09-400, request for solicitor general's views 11/9/09).

Vincent Staub, an Army Reserve member who was fired from his civilian job as a technician at Proctor Hospital in Peoria, Ill., has asked the court to review a decision by the U.S. Court of Appeals for the Seventh Circuit reversing a $57,640 jury verdict for Staub under USERRA.

In its March 2009 opinion, the Seventh Circuit ruled that when a USERRA plaintiff relies on a cat's paw theory of liability, a federal trial judge must make a threshold determination that there is evidence an allegedly biased supervisor had “singular influence” on the nonbiased decisionmaker before allowing a jury to hear the evidence of alleged bias ( 560 F.3d 647, 186 LRRM 2001 (7th Cir. 2009); 60 BTM 108, 4/7/09).

The appeals court said that because Staub lacked sufficient evidence for a reasonable jury to find that his allegedly anti-military immediate supervisor singularly influenced a nonbiased hospital human resources director's decision to fire Staub, the trial judge erred by sending the cat's paw case to the jury. The Seventh Circuit noted it had not previously specified the proper procedure for cat's paw cases, which typically arise under Title VII of the 1964 Civil Rights Act and other federal anti-discrimination laws.

A plaintiff proceeding under a cat's paw theory concedes that the person who fired him or her lacked any discriminatory motivation but contends that an immediate supervisor or another manager with improper discriminatory motives unduly influenced the adverse employment action.

The Seventh Circuit ruled that although a cat's paw theory may be available under USERRA, Staub failed to raise a triable issue that the HR director, who independently investigated charges that Staub had engaged in workplace misconduct, was unduly influenced by information from Staub's allegedly biased supervisor. Instead, the appeals court said the HR director consulted multiple sources and reached her own decision regarding Staub's fate. The district court therefore erred in allowing the jury to hear the evidence of alleged anti-military discrimination or sending the case to the jury on a cat's paw theory, the appeals court ruled.

Opposing Briefs

In 2007, the Supreme Court had granted review in BCI Coca-Cola Bottling Co. of Los Angeles v. EEOC, a race discrimination cat's paw case arising under Title VII of the 1964 Civil Rights Act (58 BTM 20, 1/16/07). But the court never heard that case, as it was voluntarily dismissed by the petitioner prior to oral argument and subsequently settled.

In his petition for review, Staub argued that the Seventh Circuit's “stringent” standard of requiring a plaintiff to show the nonbiased decisionmaker acted in “blind reliance” on the allegedly biased supervisor perpetuates an “entrenched” conflict among the federal appeals courts about the proper evidentiary standard for cat's paw cases.

The view adopted by the Seventh Circuit and the U.S. Court of Appeals for the Fourth Circuit that the allegedly biased manager must be the “functional decisionmaker” is the minority view, as the Sixth, Ninth, Tenth, and Eleventh circuits have permitted cat's paw cases to proceed if the allegedly biased supervisor's views “caused the action” of the nonbiased decisionmaker, Staub said.

In addition, six federal circuits have ruled that “proof that an unlawfully motivated official influenced or played a role in the decisionmaking process is sufficient to impose liability on the employer,” Staub wrote.

The issue's practical importance is significant, as most major employers use a personnel process in which several different officials are involved in initiating the disciplinary process, providing information, offering recommendations, and making the ultimate decision to fire an employee, Staub wrote.

In a brief opposing review, the hospital said any conflict among federal circuit courts regarding the “standard of influence” by an allegedly biased subordinate official on a nonbiased decisionmaker “needed to impute discriminatory animus” to the employer is irrelevant in Staub's case because the HR director's “independent investigation” broke any causal link between Staub's supervisor's alleged bias and his termination.

“The circuit courts are in agreement that where a final decision maker bases her decision on an independent investigation, the causal link between a non-decision maker's alleged bias and the employment decision is broken, and the non-decision maker's animus is insufficient to impute liability to the employer,” the hospital said.

The “undisputed facts” in Staub's case indicate HR director Linda Buck received and considered information about the employee's alleged misconduct from multiple sources other than the allegedly biased supervisor and that Buck used unbiased information to reach her termination decision, the hospital said.

Copyright 2009, The Bureau of National Affairs, Inc.