By Joseph U. Leonoro
In March of this year, I wrote about a recent decision from the United States
Supreme Court - Staub v. Proctor Hospital - addressing the "cat's paw"
theory of liability in employment discrimination cases. Under the cat's
paw theory, a plaintiff can hold an employer liable for the animus of a
supervisor who was not charged with making the ultimate employment decision
but, nonetheless, influenced the decision. As I noted in the March
article, the Court's decision will have far-reaching implications, and we have
already started to see evidence of this.
Recently, a district court in Ohio applied the cat's paw
theory to a case in which the plaintiffs alleged that they were discharged in
retaliation for taking protected leave under the Family and Medical Leave Act
("FMLA"). In Blount v. Ohio Bell Telephone Co., No. 1:10-cv-01439,
(N.D. Ohio Mar. 10, 2011) [an enhanced version of this opinion is available to lexis.com
subscribers] , two former employees of Ohio Bell
Telephone Company alleged that they had been discharged in retaliation for
taking FMLA leave and because of their age. Both of the plaintiffs had
failed to meet the performance standards of the company, but they alleged that
they were treated differently than other employees because of their use of FMLA
The plaintiffs were directly supervised by a coach
manager. The coach manager reported to a center sales manager, who in
turn reported to a general manager. During the course of discovery, one
of the coach managers testified that he attended meetings in which center sales
managers "specifically discussed targeting individuals who took FMLA leave with
increased punishment and that individuals who took FMLA leave were progressed
through the disciplinary chain much more quickly than were individuals who did
not take FMLA leave." The coach manager also stated that, although all
the employees who failed to meet their job expectations were disciplined, those
employees who took FMLA leave were purposely progressed more quickly through
the discipline process than those who did not take FMLA leave.
This proffer of direct evidence of discrimination was
obviously damaging to the employer's case. The company responded that
this evidence was not relevant to the plaintiffs' claims because the center
sales manager did not have the authority to discipline and discharge
employees. There was some dispute between the parties as to which
supervisors had the authority to make disciplinary decisions and terminate
The court, however, ruled that even if the center sales
manager did not have the authority to discipline or discharge employees, his
animus towards employees taking FMLA leave could be inferred up the chain of
command where it "had the effect of coloring the various adverse employment
actions" in the case. The court cited the Supreme Court's decision in Staub
to support this proposition.
case presents a classic example of "cat's paw" liability that trial courts will
grapple with more frequently in light of the Supreme Court's March
ruling. Although this decision does not address the issue, employers
should remember that the Supreme Court did recognize that there are times when
an employer's independent review may shield the employer from liability even if
the employee can establish animus by a supervisor who is a link in the chain of
command leading to the discharge decision. For example, if the employer's
independent investigation results in a discharge for reasons unrelated to the
supervisor's biased action, then the employer would not be liable.
However, the employer has the burden to establish that defense at trial.
In addition, even if the employer conducts an independent review, it is
possible that the supervisor's biased action may remain a causal factor in the
discharge, and thus, the employer would still be subject to liability.
Unfortunately, the Supreme Court declined to adopt a hard-and-fast rule
regarding the type of independent review that would shield an employer from
liability and that issue will continue to be addressed and refined by the
courts for years to come.
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