Court Limits ‘Cat’s Paw’ Doctrine
It is well established that an employer’s decision cannot be said to be free of discrimination – even if the decision-maker was motivated by a legitimate concern – if the decision-maker was relying upon negative information from another employee motivated by unlawful discriminatory or retaliatory animus. This is known as the “cat’s paw” doctrine. In an unpublished decision, Roberts v. Principi, 6th Cir. No. 06-6059 (June 2008), the Sixth Circuit U.S. Court of Appeals limited the doctrine, by holding that when a decision-maker conducts an independent investigation before taking action, the causal link between the subordinate’s retaliatory animosity and the adverse action is severed.
Nancy Roberts, a Certified Registered Nurse Anesthetist (“CRNA”), served in the anesthesia section of a VA Hospital’s surgical service. In January 2001, a co-worker directed profane, vulgar and gender-oriented comments at Roberts and some of the other employees. Roberts eventually filed a formal complaint of discrimination with the VA, alleging that she was discriminated against, and that the agency had failed to take corrective action. On June 11, 2001, an EEO investigator called and interviewed a management official regarding the charge. The next morning, the management official told her nursing staff that Roberts had filed an EEO charge against her and that she was resigning her position in the operating room because of Roberts. This was untrue as the official had already been selected for another position and had planned to transfer to that position before the investigation of the charge began. After learning of Roberts’s complaint and the official’s transfer to another position, various operating-room staff began to circulate three separate petitions against Roberts, two of which mentioned her “complaints.”
Out of fear that the disruption in the operating room directly affected patient care, Roberts was temporarily removed from the anesthesia section and detailed to the emergency room. The agency then commissioned a fact-finding board to investigate the matter. The board interviewed Roberts along with 13 of her co-workers. The board issued its final report concluding that the allegations made in the petitions were true and recommended that under no conditions should Roberts be returned to the operating room. Because he considered a permanent transfer a drastic action, the decision-maker wanted a more formalized review of the issues and authorized an Administrative Board of Inquiry (“ABI”). The ABI took sworn testimony or declarations from 29 people and reviewed various documents. At the conclusion of its investigation, the ABI issued a formal written report, concluding that putting Roberts back into the surgical service would recreate the very dysfunctional environment. Based on the findings and recommendations of the ABI, the decision-maker permanently reassigned Roberts.
In June 2002, Roberts sued the VA and alleged, among other things, retaliation for engaging in activity protected under Title VII. The district court subsequently issued an opinion dismissing Roberts’s retaliation claim for lack of a causal connection between any retaliatory motives of her coworkers and the decision maker’s decision to transfer her to another department. Roberts appealed.
In order to be successful on appeal, Roberts had to prove that the animus created by her protected activity caused the VA to transfer her. She conceded that the ultimate decision-maker did not harbor any animosity toward her. Roberts argued that patient care was not the motivating factor for her transfer, but that the retaliatory animus of her coworkers so influenced the decision maker’s decision that their animus should be imputed to him. The court noted that had the decision-maker made his decision to transfer Roberts permanently based solely on the three petitions, Roberts would have a strong argument that the decision-maker was nothing more than a conduit or a “cat’s paw” of her coworkers’ retaliatory animosity. However, the court concluded that when a decision-maker makes a decision based on an independent investigation, any causal link between the subordinates’ retaliatory animosity and the adverse action is severed.
By making a decision based on an independent investigation, the decision-maker confirms that he is acting as a true agent of the employer and not a mere conduit of the subordinate. The question becomes, then, whether the investigation was independent or merely a façade. The court concluded that as long as the decision-maker seeks input from all sides of the dispute (most importantly from the targeted employee) and as long as the decision-maker does not permit a subordinate’s biased view to become the overriding influence, then the resulting decision will be an independent one.
Originally Published: FEDweek