Cat’s Paw Theory of Discrimination Applies to FMLA
The term Cat’s Paw comes from an old fable in which a conniving monkey convinces a cat to reach into a fire to get roasting chestnuts. The cat is duped, burns its paw and the monkey enjoys the chestnuts with no harm. In the employment discrimination context, ‘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.” (EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles,) 450 F.3d 476, 484 (10th Cir. 2006).
The Sixth Circuit in the case of Marshall v The Rawlings Company LLC, No. 16-5614, used the Cat’s Paw Theory to reverse the district court’s dismissal of the summary judgment motion of the plaintiff’s claims of Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) retaliation claims. The matter was remanded for further proceedings.
FACTS: The Rawlings Co. LLC provides recovery or “cost containment” services to health insurance providers. Plaintiff Gloria Marshall began working as a workers’ compensation analyst for Rawlings in 2006. She was promoted to team leader in 2011.
Marshall suffers from depression, anxiety and posttraumatic stress disorder. She unexpectedly took leave under the FMLA, 29 U.S.C. §§ 2601-54, in February and March 2012 to address her acute mental health problems.
Demotion
Vice President Jeff Bradshaw, concerned about Marshall’s performance, which he viewed as unsatisfactory, recommended to Laura Plumley, President of the Division, that Marshall be demoted from team lead to analyst. Without independent investigation, she agreed. Bradshaw and Mike Elsner, Marshall’s second level supervisors, met with her and she was demoted in September 2012. She claimed that in the month before her demotion, Bradshaw sarcastically asked if she would be out on leave any time soon and during the demotion meeting, Bradshaw raised his voice and belittled her. Marshall took periods of FMLA leave intermittently from March 2013 through August 2013.
At a May 2013 celebration lunch for Marshall and four other analysts with the highest first-quarter recoveries, Marshall claimed that Bradshaw bullied her.
Productivity Problems
On Sept. 23, 2013, Elsner confronted Marshall about her productivity after observing she hadn’t been at her desk for a large portion of the day. When Elsner asked Marshall about it, she claimed that she had been harassed by Bradshaw and that she hadn’t reported the harassment because she was afraid of being fired. Elsner, required to report the allegations of harassment, did so.
After meeting with Elsner and Marshall to discuss the allegations, Laura Plumley, president of the division, stated that she didn’t believe Bradshaw’s alleged harassment was actionable and that it was her impression that Marshall “was not doing her job, had been called on the carpet by her supervisor, and in order to deflect it, brought up the allegations of harassment against Bradshaw.”
Plumley reported her conclusions to George Rawlings, the company’s owner. Rawlings then met with Marshall and decided during the meeting to terminate Marshall after concluding that Marshall was making false allegations of harassment “in order to avoid the consequences of her own excessive absences.” Rawlings later claimed that he was unaware at the time that Marshall had ever taken any FMLA leave or that she had any medical conditions.
ANALYSIS
Reviewing the facts of the case, the Sixth Circuit held that the cat’s paw theory applies equally to FMLA retaliation claims as to other types of employment and retaliation claims. The cat’s paw theory accomplishes two goals:
It addresses situations where the decision makers adopt the recommendations of their biased lower-level supervisors, and
It stops the option for employers who try to evade liability through willful blindness to the source of reports and recommendations.
Once the court decided to apply the cat’s paw theory of liability to FMLA retaliation claims, it considered the following three questions:
Does the theory apply in situations involving more than one layer of supervision between plaintiff and the ultimate decision maker?
Yes. Here lower level supervisors Bradshaw and Elsner influenced intermediate supervisor Plumley who then, oblivious to and adopting the subordinates bias, influenced the big boss, Rawlings. The court: “there is no reason to forbid plaintiffs from pursuing a theory that a lower-level supervisor carried out a scheme to discriminate by influencing multiple layers of higher-level supervision."
What is the relationship between the McDonnell Douglas burden shifting framework and cat’s paw liability?
Under this framework—1) plaintiff has the burden to make a prima facie case of discrimination; 2) having done so, the defendant must show a non-discriminatory reason for the firing or demotion; and 3) if the defendant provides a non-discriminatory reason, the plaintiff must show that the reason given was pretext or had no basis in fact, didn’t provoke the termination or wasn’t sufficient to call for termination.
Those using the Cat’s Paw theory must satisfy the requirements of the McDonnell Douglas burden shifting.
How does the honest-belief rule apply to the cat’s paw theory of liability?
Under the honest-belief rule, if an employer has an honest belief in its nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was an excuse simply because it is incorrect.
Yet, under the Cat’s Paw liability, the honesty of the decision maker’s belief is irrelevant. What is relevant is that the belief is rooted in a biased recommendation. Under this theory, the allegation is that the biased subordinate intentionally manipulated the decision maker.
The court noted that evidence of bias isn’t always sufficient to prove a cat’s paw theory. The traditional tort-law concept of proximate cause applies. An independent investigation defeats a cat’s paw claim only when the investigation determines that the adverse action was, apart from the supervisor’s recommendation, entirely justified.
Applying the three questions to the facts of this case, the court concluded that there were genuine disputes of material fact as to whether Bradshaw and Elsner were biased against Marshall and sought to have her demoted and then fired. On the record presented, the court held that a reasonable jury could conclude that Plumley and Rawlings didn’t conduct an independent investigation and merely served as the conduit for their subordinate’s retaliatory intent.
Therefore, the court reversed the district courts grant of summary disposition on the FMLA and ADA retaliation claims, while upholding the dismissal of the FMLA interference and the intentional infliction of emotional distress claims.
