Supreme Court Rejects Challenge to “Cat’s Paw” Theory
On March 1, 2011, the Supreme Court issued its decision in Staub v. Proctor Hospital, 562 U.S. ____, No. 09-400. In Staub, the court had to decide whether an employee can prove discrimination through use of the “cat’s paw” theory. Unlike many other discrimination claims, “cat’s paw” cases do not involve discriminatory intent on the part of the ultimate decision-maker. Instead, in “cat’s paw” cases, the ultimate decision-maker for the personnel decision in question is not biased, but is alleged to have relied upon information or input from other biased individuals in making his decision, thus tainting the decision and the overall personnel action as discriminatory. Writing for the majority, Justice Scalia rejected a challenge to the use of the “cat’s paw” theory to find Proctor Hospital liable when the evidence showed that Staub’s firing was caused by a biased employee, even though that biased employee was not the ultimate decision-maker who fired Staub.
Staub was an angiography technician working at Proctor Hospital. Staub was also a member of the U.S. Army Reserve, which required Staub to attend military drill one weekend each month and full-time training 2-3 weeks per year. Staub’s 1st-line and 2nd-line supervisors allegedly were hostile to Staub’s military duties in the Reserves, making negative comments regarding Staub’s reserve duties and regarding the scheduling difficulties in accommodating Staub’s military duty. Staub’s supervisors further scheduled Staub for additional shifts without notice as payback for the difficulties in scheduling around Staub’s military obligations, according to the court.
In 2004, Proctor Hospital fired Staub after first issuing him a disciplinary warning, citing as its reason Staub’s violation of an alleged hospital rule requiring Staub to stay in his work area when not working on a patient. The decision-maker who fired Staub was not Staub’s 1st-line or 2nd-line supervisor, but instead another individual who relied on information provided by those supervisors in making the decision to terminate Staub. Staub first challenged his termination through Proctor Hospital’s internal grievance process, alleging that the rule cited in the disciplinary warning did not actually exist and that he had not engaged in any such violation in any event.
Staub then sued Proctor Hospital in U.S. District Court for violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), charging that Proctor Hospital had fired him out of hostility to his military obligations in the Reserves. Staub’s claims utilized a “cat’s paw” theory, asserting not that the decision-maker was biased but that his decision to fire Staub was influenced by his 1st and 2nd-line supervisors. The jury found in favor of Staub, and awarded him over $57,000 in damages. The verdict was appealed to the U.S. Circuit Court for the Seventh Circuit. The Seventh Circuit reversed the jury’s verdict and found Proctor Hospital entitled to judgment as a matter of law. The Circuit Court cited its own precedent, which limited application of the “cat’s paw” theory to situations of blind reliance on the biased employees and barred employer liability where the ultimate decision-maker had conducted his own investigation into the facts before making a decision. The Supreme Court granted certiorari.
Writing for six justices, Justice Scalia reversed the Seventh Circuit. Justice Scalia rejected an automatic rule against using the “cat’s paw” theory where the ultimate decision-maker conducts some independent investigation. Instead, Justice Scalia noted that in tort law prior acts of an employer’s agent can also constitute proximate cause for a harm against an employee, and that Staub’s 1st-line and 2nd-line supervisors were agents of Proctor Hospital under the common law of agency. Justice Scalia noted that, under USERRA, an employer can still prevail by proving that it would have taken adverse action against the employee for reasons unrelated to the employee’s protected military activity, but that the employer bears the burden of proving this defense. The Supreme Court remanded to the Seventh Circuit for determination whether the differences between its holding and the phrasing of the jury instructions used at trial required a new trial on Staub’s claim.
Justice Alito, joined by Justice Thomas, concurred in the result. However, Justice Alito rejected a “cat’s paw” analysis that the decision-maker relied upon the input of Staub’s biased supervisors, and instead held that on these facts that the termination decision had been essentially delegated to Staub’s biased 2nd-line supervisor. Justice Alito’s analysis favored limiting liability to employers where the ultimate decision-maker has conducted an independent investigation prior to taking adverse action against an employee. The cat’s paw analysis is also applicable to finding liability in employment discrimination cases.