Following the Supreme Court’s March decision in Staub v . Proctor Hospital validating the cat’s paw theory of discrimination, employment lawyers have been watching for the circuits to define guidelines for defense of such a claim.
The cat’s paw theory contends that an employee has a valid discrimination claim, even if the person who makes the negative employment decision is not biased, if the decision maker is influenced by someone else who is biased (see “Singed Paws”).
Staub legitimized cat’s paw claims but gave employers little guidance on how to avoid liability. The court found unpersuasive the defendant’s argument that a decision maker’s “independent investigation (and rejection) of the employee’s allegations of discriminatory animus,” or the absence of such animus in the decision maker, absolves an employer of fault. But it declined to adopt a bright-line rule.
In McKenna [and Carnation] v. City of Philadelphia, decided in August, the 3rd Circuit addressed cat’s paw liability for the first time since Staub. The court upheld a district court ruling for the plaintiff, a terminated Philadelphia police officer. The appeals court’s response to the way Philadelphia handled the case suggests steps employers should take when the immediate supervisor who recommends an adverse employment action is suspected of bias—a common scenario.
“The frequency of cat’s paw trials underscores the importance of cases like McKenna,” says Ogletree Deakins Shareholder Maria Danaher.
The plaintiff in McKenna, Raymond Carnation, argued that he was discharged in retaliation for protesting his supervisor’s failure to address racial tensions in his squad. Carnation, who is white, said the manager reacted to his complaints by assigning him and minority officers to dangerous and unpleasant duties. He said the police captain threatened to make Carnation’s life “a living nightmare” if he complained to the Equal Employment Opportunity Commission and ordered him to stop complaining to the supervisor. One weekend, Carnation called the supervisor to try to resolve his concerns; the police captain responded by filing charges against Carnation for insubordination and neglect of duty.
After a hearing before the Police Board of Inquiry (PBI), it found Carnation guilty of the charges and recommended his dismissal. The police commissioner then terminated Carnation.
A district court jury found that Carnation’s termination was an act of retaliation for his protests and for raising a complaint of discrimination. The employer sought judgment notwithstanding the verdict, arguing that an independent decision to terminate the employee was made by the police commissioner based on the recommendation of the PBI, not the biased supervisor. The district court denied the city’s motion for judgment.
In affirming the district court’s decision, the 3rd Circuit held that if a plaintiff establishes a prima facie case that his termination was motivated by an employer’s retaliatory animus, the burden shifts to the employer to present evidence that the decision was made by an independent, unbiased decision maker, and was taken for reasons unrelated to a single actor’s retaliatory motives.
The court ruled the evidence presented at the PBI hearing failed to meet this standard. It was unclear what, in fact, formed the basis for the decision to terminate Carnation.
“The city’s decision regarding a legitimate business reason for termination should have been documented better,” says Danaher.
Cozen O’Connor Partner George Voegele represented Philadelphia in the district court trial. “If the city had been clearer about the nonretaliatory reasons for Mr. Carnation’s termination and exhibited evidence that the police board’s proceeding was truly impartial, the result may have been different,” Voegele says.
He says the city also would have been in a better position if it had presented more evidence about the procedures used in the PBI hearing. For example, the city should have made note of whether the plaintiff was allowed to call his own witnesses and cross examine others. Voegele recommends that an uninvolved third party be called to testify about an employer’s practices instead of the alleged discriminator, as occurred in McKenna.
Lessons Learned
Littler Mendelson Shareholder Matthew Hank says McKenna offers several lessons. First, when asserting a defense, “the record should be clear as to what nondiscriminatory and nonretaliatory information informed any adverse employment action,” he says.
Second, the McKenna panel focused on whether or not procedural protections had been afforded the plaintiff. “Make sure a fair and transparent process exists,” Hank says. This need not require a quasi-judicial process, “but the process should be consistent from employee to employee and provide enough information for a reasonable person to make the decision to terminate the employee, or not,” he adds.
Third, fact-finding methods should include taking statements not only from the employee and the allegedly biased supervisor, but also from any other witnesses identified by the complainant and supervisor with unbiased knowledge of the facts.
Finally, where an employer is considering an adverse action against an employee not falling within these guidelines, employers should seek legal advice before proceeding with any adverse action.
“It sounds like a broken record in employment law, but a thorough investigation is the most important tool an employer can wield,” Voegele says.
