The Cat’s Paw Doctrine (“Cat’s Paw”) is a theory of liability whereby employment discrimination claimants impute the bias of any employee —even a non-manager, non-decision maker-- to the employer sufficient to demonstrate a causal nexus exists between the employee’s bias and the resulting adverse job action. Since its introduction, the courts have worked to color in the controlling factors: what non decision maker involvement can constitute proximate cause of the adverse decision and how can the employer insulate itself from imputed bias of any employee?
Case law from 2015 through 2017 demonstrates that while the showing of influence need not be absolute, plaintiffs have a very difficult time getting past summary judgment on that element.
The Cat’s Paw Doctrine emerged out of the 7th Circuit. See, Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990) as a spin off of respondeat superior theory. (“On this understanding, the [anti-discrimination] statute is silent on the issue of derivative liability and it is thus left to the courts to decide as a matter of federal common law whether to apply the doctrine of respondeat superior in age discrimination cases” at p. 404).
Cat’s Paw gained traction when a 7th Circuit decision involving the firing of an employee covered by the Uniformed Services Employment and Reemployment Rights Act ("USERRA") was reviewed by the U.S. Supreme Court (“SCOTUS”) which reversed and remanded Staub v. Proctor Hosp., 562 U.S. 411, 131 S. Ct. 1186 (2011). In Staub, the facts were mixed: the director who terminated the plaintiff relied on fraudulent reports from biased supervisors, but also relied on his own investigation and review of the employee's personnel file. Under those facts, the Seventh Circuit refused to conclude that the hospital's decision to terminate was "blindly reliant" on the supervisors' false and discriminatory reports and reversed a jury verdict finding liability. The independent investigation being the key to the break in proximate cause.
The 7th Circuit ultimately defined the doctrine as informed by SCOTUS to mean that, “[I]f the [non decision maker employee] performs an act motivated by [prohibited] animus that is intended by [non decision making employee] to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then [employer] is liable under USERRA.” [as cited in the opinion on remand, Staub v. Proctor Hosp., 421 F. App'x 647, 648 (7th Cir. 2011).] [emphasis added] Thus, combining a malevolent intent by the non-decision making employees with some action that is proximately linked to the adverse employment action is sufficient to impute intent to the employer. Staub v. Proctor Hosp., 421 F. App'x 647 (7th Cir. 2011).
Both prior and subsequent 7th Circuit decisions outlining Cat’s Paw have further instructed as to the second factor, the causal connection that must be established between the non decision maker animus and the adverse employment action. In Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004) the Court rejected the requirement that the decision maker be simply a front for the biased employee. Rather, the showing of causality from the biased employee’s actions was required. Id., at 584 (“If Boulden would not have turned down Lust for the promotion had it not been for Penters' recommendation, a recommendation that the jury could reasonably find was motivated by sexist attitudes, then Penters' sexism was a cause of Lust's injury, whether or not Boulden could reasonably be thought a mere cat's paw.”)
Later, the Court in Long v. Teachers' Ret. Sys. of Ill., 585 F.3d 344, 351-52 (7th Cir. 2009) reviewed the range of analysis as of that time:
… the "cat's paw" doctrine… has received inconsistent treatment in this Circuit. Some cases hold that a subordinate must have a "singular influence" over the employment decision…and others do not draw such a bright line. In Shager v. Upjohn, [913 F.2d 398, 405 (7th Cir. 1990)] for example, the court found that evidence of "taint" and "influence" by a non-decision maker made the decision maker a "conduit of [his] prejudice." The court did not suggest, however, that the subordinate's influence must be "singular," focusing instead on the lack of independent deliberation by the decision-making committee. …Other cases, however, suggest that the cat's paw doctrine only applies where a "decision maker is . . . wholly dependent on a single source of information." [citing Brewer v. Bd. of Trs., 479 F.3d 908, 917-18. (7th Cir. 2007)
In Schandelmeier-Bartels v. Chi. Park Dist., 634 F.3d 372 (7th Cir. 2011)—a case subsequently cited over 100 times--employer liability arose when the “non biased” decision maker “singularly relied” on a memo drafted by a racially biased supervisor who recommended plaintiff's termination. The court noted, however, that “Under any formulation of the cat's paw standard, the chain of causation can be broken if the unbiased decision maker conducts a meaningful and independent investigation of the information being supplied by the biased employee." Id., at 383.
In Dickerson v. Bd. of Trs., 657 F.3d 595, 602 (7th Cir. 2011), the court stated in dicta that cat’s paw would apply to claims under the Americans with Disabilities Act (ADA). On the other hand, at least two cases have expressed dicta that cat’s paw would not apply to impute liability to a municipality under 42 U.S.C.S. § 1983. Waters v. City of Chi., 580 F.3d 575, 586 n.2 (7th Cir. 2009) noted that, “Given that well developed § 1983 municipal liability law recognizes delegation and ratification, there seems to be little point in trying to awkwardly fit the cat's paw concept in this area of civil rights law. But even if a cat's paw type of theory applies in this context, Waters hasn't shown a singular influence over Rice that caused the termination decision. Furthermore, any minimal influence is negated by Rice's own independent review of the grounds for Waters' termination.”; see also, Renta v. City. of Cook, 735 F. Supp. 2d 957, 977 n.8 (N.D. Ill. 2010).
In Smith v. Bray, 681 F.3d 888, 897 (7th Cir. 2012) the Court subsequently found the opposite when it treated cat’s paw under a 42 U.S.C.S. § 1981 (Equal Rights Under the Law ) claim. There, it stated that, “So the substantial weight of authority shows that a cat's paw theory will support entity liability for retaliation under Title VII, § 1981, and § 1983, except perhaps when the defendant is a municipal corporation and the biased or retaliatory subordinate is not a policy-maker.” Id., at 899. The Court went even further to assert that individual liability for the biased subordinate can be found under §1981. Id., at 699 (“In general, the same standards govern intentional discrimination claims under Title VII, § 1981, and § 1983, … and recognizing individual cat's paw liability under § 1981 is consistent with our parallel approaches to these statutes. It logically follows that an individual can be liable under § 1981 for retaliatory conduct that would expose her employer to liability under Title VII or § 1981. It also makes sense as a matter of basic fairness: why should the "hapless cat" (or at least his employer) get burned but not the malicious "monkey"? The cat's paw theory can support individual liability under § 1981 for a subordinate employee who intentionally causes a decision-maker to take adverse action against another employee in retaliation for statutorily protected activity.”)
Johnson v. Koppers, Inc., 726 F.3d 910, 915 (7th Cir. 2013), is a defense favorable opinion. Here, the Court upheld summary judgment against plaintiff despite a cat’s paw claim for two reasons: the record did not support a claim that the hostility of the non decision making employee was racially motivated and that the plaintiff’s termination arose not from the other employee’s claims but through independent investigation of the key workplace incident.
In Cipolla v. Vill. of Oak Lawn, 26 N.E.3d 432, 444 (1st Dist. 2015), the Court upheld the trial court’s refusal to give a cat’s paw jury instruction in an ADEA case against a municipality because “it employed a village manager form of government and that Deetjen, as village manager, had the authority to make all personnel decisions.” Id., at 444. Thus there was no showing of “'singular influence’ over the decision maker that the decision to terminate was the product of ‘blind reliance.’" Additionally, the termination was based on the passing of budgets by city personnel who were not shown to harbor bias. Finally, the court’s issuing an instruction on agency theory provided a means to impute liability to the city, obviating the need for a cat’s paw instruction.
In Roberts v. Columbia Coll. Chi., 821 F.3d 855 (7th Cir. 2016) another ADEA claim was defeated on summary judgment even when bias was demonstrated by the non-decision making employee if “there is no evidence that Ravanas "manipulated" or "decisively influenced" Love's decision to terminate Roberts' employment.” Id., at 865.
In Bordelon v. Bd. of Educ., 811 F.3d 984, 992 (7th Cir. 2016), cat’s paw was again rejected in an ADEA case. There, Plaintiff failed to show that the non decision making employee influenced the school council’s refusal to renew her teaching contract. Id., at 992 (“Bordelon did not point to evidence ‘that the biased subordinate actually harbored discriminatory animus against the victim of the subject employment action,’ so the cat's paw theory of liability cannot save his case from summary judgment.”)
In Boston v. U.S. Steel Corp., 816 F.3d 455 (7th Cir. 2016) another ADEA case, defendant’s summary judgment was upheld because it was only speculative as to whether the allegedly biased influencing employee knew of plaintiff’s actions giving rise to the retaliation claim. Boston v. U.S. Steel Corp., 816 F.3d 455, 466 (7th Cir. 2016) (“The evidence Boston presents is hardly "significant probative evidence…For one, the statement "I don't care what you filed" is not an obvious reference to Boston's 2010 EEOC claim. It could, for instance, refer to a grievance filed by the Union. There is also no other evidence that Graham knew about the October 2010 EEOC charge. In any event, the circumstantial evidence is insufficient to support an inference of retaliatory animus.”)
In Hillmann v. City of Chi., 834 F.3d 787 (7th Cir. 2016) a claim under the ADA was rejected by the jury and was let stand by the District Court based on failure to establish causation between the non decision making employee’s bias and the adverse employment action. Plaintiff’s job was eliminated by a reduction in force (RIF) determination and claimed his inclusion was retaliation for a worker’s compensation claim. However, the Court noted the factual disconnect between the RIF determination and the bias. Id., at 794 (“Because Commissioner Sanchez made the final decision to include the timekeeper positions in the RIF and no evidence suggests that he knew about Hillmann's workers' compensation claim, the IWCA retaliatory-discharge claim fails as a matter of law.”)
In Turner v. Hirschbach Motor Lines, 854 F.3d 926 (7th Cir. 2017), a protected job applicant was not hired as a truck driver after failing a drug test. His Title VII claim was rejected because “The court found that Turner lacked evidence that [non decision making employee’s] racial animus caused him not to be hired because he offered no evidence that the MedTox drug test was unreliable or that the [subsequent re-test] would have been negative. The court also found that Turner did not offer sufficient evidence for a reasonable jury to infer that [the decision maker] she decided not to hire him because of racial animus rather than his positive test result. Nor did [non decision making employee’s] discriminate against Turner by reporting his positive drug test result to the industry consortium, the court concluded. [non decision making employee’s] presented undisputed evidence that it reported positive tests as a matter of routine and as required by federal regulations.” Id., at. 928.
Finally, in Grant v. Trs. of Ind. Univ., 870 F.3d 562 (7th Cir. 2017), summary judgment was affirmed against a plaintiff asserting retaliatory firing because “This theory requires Grant to show that Guillaume ‘actually harbored discriminatory animus against him[,]’ which he has not done… In his response, Grant merely offered a conclusory statement, with no citation to any record evidence. … Grant has also failed to show that Guillaume's "input was a proximate cause of [Grant] getting fired." … Grant never rebutted the defendants' assertion that Guillaume did not have any input or influence on Grant's case after submitting it to Reck over a year before Grant's termination. Next, as we discuss below, Grant offered no evidence showing that Reck did not rely solely on Klink's findings in reaching her decision to terminate Grant.” Id., at 570.
These cases instruct that having the decision maker perform an independent investigation into the facts can be the key to breaking the chain of causation for the animus of the non-decision maker in the nature of an intervening, superseding,, act. The decision maker should not be involved in the handling of disability or workers compensation claims so that he or she is unknowing concerning those claims.
