The Cat’s Paw Doctrine (Cat’s Paw) has gotten a lot of play in the 9th Circuit in the years following the Supreme Court’s treatment of it in Staub v. Proctor Hosp., 562 U.S. 411, 131 S. Ct. 1186 (2011). The following is a review of decisions from the 9th Circuit, both Appellate and District court cases, providing color to Cat’s Paw.
The 9th Circuit Court of Appeals
The 9th Circuit’s first treatment of cat’s paw came in Poland v. Chertoff, 494 F.3d 1174 (9th Cir. 2007). There, the Court dealt with a non decision making subordinate who “set in motion” the proceedings that later lead to an adverse employment action. The subordinate's bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate “influenced or was involved in” the decision or decision making process. Id. at, 1181-84.
Poland further clarified the importance of conducting an independent investigation to insulate the taint of any employee bias. “Thus, if an adverse employment action is the consequence of an entirely independent investigation by an employer, the animus of the retaliating employee is not imputed to the employer. … Conversely, even if the biased subordinate was not the principal decision maker, the biased subordinate's retaliatory motive will be imputed to the employer if the subordinate influenced, affected, or was involved in the adverse employment decision.” Id., at 1181-84.
Later, in Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047 (9th Cir. 2011), the Court focused on cat’s paw in the context of a retaliation claim and what “sets in motion” the events that lead to the adverse action. In such cases, the key factual issue is whether the employee with knowledge of the protected activity communicates this to the decision maker. The claim of knowledge must be specifically proven. The Court explained, “Cafasso defends her retaliation claim by speculating that other GDC4S officials who did know of her protected conduct may have poisoned Marzilli against her—the "cat's paw" theory of liability. The only evidentiary support she offers is first, the fact that some GDC4S officials who were in a position to influence Marzilli knew of her ATIRP-related inquiries and requests, and second, the cryptic statement of a coworker that unspecified "people" had, for unknown reasons, "poisoned the water," "gotten to Chris Marzilli," and "placed a cloak of poison over [Cafasso's] office with Chris Marzilli…To prove this theory at trial, Cafasso would have to establish that one of Marzilli's subordinates, in response to Cafasso's protected activity, "set[ ] in motion" Marzilli's decision to eliminate Cafasso's department and job, and that the subordinate "influenced or was involved in the decision or decision making process.” Id., at 1060-61.
In Crudder v. Peoria Unified Sch. Dist. No. 11, 468 F. App'x 781 (9th Cir. 2012) the fact that a non decision making employee reported the allegations to Santarelli and other administrators that led to the adverse action was not enough. “Although she provided names of colleagues whom she believed might share her views of Crudder, she had nothing else to do with the fact-finding portion of the investigation... Thus, the district court properly granted summary judgment to the district on Crudder's disparate treatment claims.” Id., at 784.
In Branscomb v. Grp. USA, Inc., 475 F. App'x 134, 136-37 (9th Cir. 2012), the court stated that cat’s paw makes relevant evidence of whether and to what extent non decision making employees “influenced” the termination decision raises triable issues as to whether plaintiff’s termination was mere pretext for race discrimination. Here, “Viewing the evidence in the light most favorable to Branscomb and drawing all reasonable inferences in her favor, the evidence is sufficient to overcome the ‘strong inference’ raised by Branscomb's hiring and firing by the same personnel within a relatively short period of time, that Group USA acted without discriminatory intent.”
In Rodriguez v. City of Colton, 541 F. App'x 738, 738-39 (9th Cir. 2013), cat’s paw analysis was relevant to test whether a stated justification was pretextual, and required evidence, not speculation of both influence and its causal nexus to the adverse action. “Plaintiffs' argument that Fraser was the ultimate decision-maker in this case is based on "undue speculation," … and their "cat's paw" argument fails because there is no evidence that any action taken by Fraser was "a proximate cause of the ultimate employment action," … Plaintiffs' argument that the City's explanation was pretextual is equally speculative.”
The 9th Circuit subsequently re-visited Rodriquez in Rodriguez v. City of Colton, 631 F. App'x 474, 475 (9th Cir. 2016) and found the same result—focusing on the independent investigation that insulated the company from underlying bias. “But even under the "cat's paw" theory of liability, Appellants had to show that Fraser's alleged racial bias was ‘a proximate cause of the ultimate employment action.’ … record demonstrates that Ruben Arroyo and Daryl Parrish made the decision to fire Appellants, and that they did so only after an independent investigation revealed that Appellants had engaged in serious misconduct during work hours. Appellants produced no evidence that Arroyo or Parrish were motivated by racial bias.”
Later, in France v. Johnson, No. 13-15534, 2015 U.S. App. LEXIS 17915 (9th Cir. Oct. 14, 2015), the nature of “setting in motion” and “influencing the decision maker” were given some high relief. “Here, Plaintiff produced evidence showing the non decision making employee’s influence and substantial involvement in the hiring decisions, including (1) that he was the person who created the GS-15 positions in the first place; (2) that other interviewers deferred to him because he will be supervising the promoted ACPAs; and (3) that he recommended the four finalists to Chief Aguilar, who then recommended the same people to Deputy Commissioner Ahern. Even though Aguilar and Ahern had the authority to change the finalists recommended by Gilbert, they did not do so, and in the total circumstances Gilbert's recommendations had substantial influence on the decision made, because both Aguilar and Ahern deferred to Gilbert's recommendation. A reasonable fact finder could infer that Gilbert—the subordinate employee with a discriminatory animus—was involved in and influenced the hiring decisions. We conclude that there is a genuine dispute of material fact as to whether Chief Gilbert influenced or was involved in the hiring decisions of the GS-15 positions, despite that he was not the final decision maker . Second, the district court erred in concluding that the non decision making employee had a limited role in the hiring decision… A reasonable fact finder could infer that his role in the decision making process was significant and influential .” Id., at *15-17
In Dickinson v. Edward D. Jones & Co., Ltd. P'ship, No. 4:14-cv-00397-REB, 2016 U.S. Dist. LEXIS 114975, (D. Idaho Aug. 26, 2016), the Court rendered Cat’s Paw in a clear formulation: “To establish a "cat's paw" theory, the plaintiff must show that (1) a supervisor performs an act motivated by discriminatory animus, (2) that is intended by the supervisor to cause an adverse employment action, and (3) that act is a proximate cause of the ultimate employment action. … Proximate cause requires only some direct relation between the injury asserted and the injurious conduct alleged, and excludes only those links that are too remote, purely contingent, or indirect… If an employer's independent investigation ‘results in an adverse action for reasons unrelated to the supervisor's original biased action,’ then the employer will not be liable. However, if the independent investigation "relies on facts provided by the biased supervisor," then the investigation is not actually independent, and the employer is liable….” Id., at *8-9, 13.
With regard to the concept of “setting in motion” the Court explained that the non decision making employee can also create imputed bias when he creates the ‘hostile environment’ inducing [in this case] insubordination which was then offered as justification for a firing. “ Viewed thusly, a factual dispute exists as to whether Miller set in motion and/or otherwise influenced Edward Jones' decision to terminate Dickinson. ….[if a biased subordinate] . . . sets in motion a proceeding by an independent decision maker that leads to an adverse employment action, the subordinate's bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decision making process." Id., at *8-9.
9th Circuit District Court Cases
- CALIFORNIA
Unsurprisingly, in the wake of Staub, California offers the most opinions involving cat’s paw. In Lewis v. City of Fresno, 834 F. Supp. 2d 990 (E.D. Cal. 2011), the decision maker “acted as a mere conduit of another's prejudice … the cat's paw doctrine applies where the party accused of discrimination was a ‘direct and important participant’ in the decision making process….Imputation of retaliatory animus will be justified by any set of facts that would permit a jury to find that an intermediary, for whatever reasons, simply carried out the will of the actuator, rather than breaking the chain of causation by taking a truly independent action". Id., at 1001.
In Muniz v. UPS, No. C 09-01987 CW, 2011 U.S. Dist. LEXIS 94364 (N.D. Cal. Aug. 23, 2011), witnesses testified that the decision maker consulted with the biased non decision making employee on various occasions regarding her decisions concerning Plaintiff and sought his opinion on Plaintiff's job performance. Additionally, the non decision making employee fashioned the terms and oversaw the implementation of a performance program which Plaintiff failed, resulting in demotion. “ All of this…supported the jury's conclusion that Meyer contributed materially to Gill's decision to demote Plaintiff. Id., at *9.
In Owens v. Walgreen Co., 2012 U.S. Dist. LEXIS 50464, at *13-15 (E.D. Cal. Apr. 9, 2012) the Court referenced a broad standard for applying Cat’s Paw where a subordinate "sets in motion a proceeding by an independent decision maker that leads to an adverse employment action, the subordinate's bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse employment decision was not actually independent because the biased subordinate influenced or was involved in the decision or decision making process." Id., at *13-15. Yet, even under that fairly limitless standard, the Court sill found for defendant based on a lack of proximate cause between the bias and the proceedings.
In Rubadeau v. M.A. Mortenson Co., No. 1:13-CV-339 AWI JLT, 2013 U.S. Dist. LEXIS 93928 (E.D. Cal. July 2, 2013), in the context of a retaliatory firing case, “an employer must have knowledge of an employee's protected activity in order for the employer to retaliate for engaging in protected activity…The knowledge requirement for a causal link can be met by showing: (1) the relevant decision maker actually knew about the employee's protected activity; or (2) the relevant decision maker acted as the "cat's paw" of an individual who knew about the protected activity, i.e. the decision maker was influenced into taking the adverse action by an individual who knew about the protected activity” Id., at P *32-33.
In Anderson v. Valspar Corp., No. 2:10-cv-03182-GEB-EFB, 2013 U.S. Dist. LEXIS 18974, (E.D. Cal. Feb. 12, 2013) the failure of the company to initiate an independent investigation ahead of the adverse employment action created an issue of fact defeating summary judgment. “Since Valspar does not assert that it conducted an independent investigation before ratifying Villegas's action …to prevail on its summary judgment motion Valspar must show …. there was a legitimate, nondiscriminatory reason for Villegas's action…” Id., at *37-41.
In Chew v. City & Cty. of S.F., No. 13-cv-05286-MEJ, 2016 U.S. Dist. LEXIS 19987 (N.D. Cal. Feb. 17, 2016), a § 1983 claim cannot be sustained against a municipality with Cat’s Paw. “The law is clear that a municipality cannot be held liable for the actions of its employees under based on a theory of respondeat superior….The Court's holding in Staub made clear that its applicability, when a supervisor acts outside the scope of his employment, was premised on ‘traditional agency principles,’ which include the theory of respondeat superior. …. Therefore, Chew cannot rely on the Cat's Paw theory as elucidated in Staub to impute liability to the City.” Id., at *48-50.
In Landig v. CooperSurgical, Inc., No. 2:16-cv-07144-CAS(KSx), 2017 U.S. Dist. LEXIS 193692 (C.D. Cal. Nov. 20, 2017) the Cat’s Paw theory was sustained when defendants did not conduct any investigation of plaintiff's two separate complaints of unlawful treatment on the basis of his age, and failed to honor its own policies and procedures. Further, a biased non decision making employee was involved in Azarian's decision to terminate plaintiff's employment, and accordingly, .. "a showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory." Id., at *44-48. Even thought defendant showed that the information that the decision maker had about plaintiff's performance came, in part, from plaintiff's own weekly reports and emails, and moreover, the decision maker made an independent assessment of plaintiff's performance from the biased employee’s reports, “ no reasonable jury could find that [the biased employee] was not a direct and important participant in the final decision making process “ as the decision maker also “directed [the biased employee] to ‘coach and guide’ plaintiff's performance before he reached a final decision, and it is undisputed that both … agreed together to make the final decision to terminate plaintiff's employment.” Id., at *44-48.
- Oregon
In Kitchen v. WSCO Petroleum Corp., 481 F. Supp. 2d 1136 (D. Or. 2007), a retaliation case, the Court took a very strict view of cat’s paw, requiring that, “plaintiff must bring forward evidence that either the decision-maker or the person who sufficiently influences the decision-maker to the extent of becoming the actual decision-maker…had knowledge of the protected activity at the time of making the decision adversely affecting the plaintiff's employment.” Avoiding the rubber stamp determination in a retaliation case requires “the final decision-maker … instead ‘base[s] his decisions on his own independent investigation, the causal link between the subordinates' retaliatory intent and the plaintiffs' terminations would be broken.’” Id., at 1148.
In Adams v. Home Depot USA, Inc., No. CV-05-1798-ST, 2007 U.S. Dist. LEXIS 103550, (D. Or. Sep. 5, 2007)
"Even if the manager was not the ultimate decision maker [in denying a promotion], that manager's motive may be imputed to the company if the manager was involved in the [employment] decision." …. ("there are situations in which the forbidden motive of a subordinate employee can be imputed to the employer because, under the circumstances of the case, the employer simply acted as the 'cat's paw' of the subordinate."The degree to which [the final decision maker's] decisions were based on his own independent investigation is a question of fact").
Viewing the facts most favorably to Adams, Dice was a key contributor to the decision to terminate Adams because he influenced Nickerson's decision to fire Adams by recommending termination and providing her with evidence of a subjective nature. In addition to the discriminatory statements he personally made, Dice was also aware of the discriminatory statements made by Youman against the two African-Americans in the department (Adams and Strong), and did nothing to discipline Youman or counsel him. As a result, a discriminatory motive by Dice may be imputed to Home Depot. at *47-49.
In Wessels v. Moore Excavation, Inc., No. 3:14-cv-01329-HZ, 2016 U.S. Dist. LEXIS 52639, (D. Or. Apr. 18, 2016) Cat's Paw applies “in the Ninth Circuit, if a subordinate, in response to a plaintiff's protected activity, sets in motion a proceeding by an independent decision maker that leads to an adverse employment action, the subordinate's bias is imputed to the employer if the plaintiff can prove that the allegedly independent adverse decision was not actually independent because the biased subordinate influenced or was involved in the decision or decision making progress. “ While there is evidence that Pellecer complained to Moore about Plaintiff's work, there is no evidence that Pellecer communicated any bias to Moore, or told Moore about Plaintiff's knee injury, his doctor's appointments, or anything else suggesting that Pellecer's bias infected Moore's decision. Plaintiff's argument is based on supposition: he supposes that because Pellecer talked to Moore about Plaintiff, he must have talked to him about Plaintiff's disability. But, the possibility that such a conversation could have occurred does not give rise to a reasonable inference that it did in fact occur.” Id., at *34-36
- Nevada
In Pulsipher v. Clark Cty., No. 2:08-cv-01374-RCJ-LRL, 2010 U.S. Dist. LEXIS 139057 (D. Nev. Dec. 27, 2010) the Court centered on the evidence regarding the causal connection between the influence of the biased employee and the decision. “If Hayes only wrongly influenced Witt, and it was not Witt, but Townsend, who made the decision to pigeon-hole Plaintiff's reclassification request by ordering Witt to conduct ] only an "informal job audit," and not to make a "formal" determination on the reclassification request, there may be no link between the wrongful motivation and the adverse employment action. … There therefore remains a factual question on this point, and the claim is not appropriate for summary adjudication.” Id. , at *15-18.
In McClain v. Cty. of Clark, No. 2:10-cv-02117-LDG-LRL, 2012 U.S. Dist. LEXIS 113677, (D. Nev. Aug. 10, 2012) the Court explained that, “To establish this theory, McClain must demonstrate a triable issue that Alvarez set in motion Thompson's decision to terminate McClain's employment and that Alvarez ‘influenced or was involved in the decision or decision making process.’” Id., at 23-26. Here, even though there were claims that the biased employee doctored the plaintiffs’ records, “Thompson recommended McClain's termination for failing to follow the approved plans on a construction project and for approving a structure to be built without proper structural review. … Accordingly, McClain's termination was the result of an ‘entirely independent investigation’ concerning McClain's conduct as to the mismanaged construction project. Although Thompson reviewed several documents regarding McClain's work performance prior to recommending his termination, McClain has failed to provide sufficient evidentiary support to create a triable issue of fact whether Thompson was manipulated by Alvarez. McClain's allegation that Koksha rewrote McClain's evaluations per Alvarez's dialogue fails to create a triable issue of fact. There is no evidence to suggest that Alvarez singled out McClain; there is no evidence to suggest that Alvarez re-wrote, or caused Koksha to only re-write, McClain's evaluations, or only the evaluations of older, Caucasian inspectors' evaluations. In addition, for the court to find liability based on McClain's unsupported allegation that Alvarez doctored the GPS records would require undue speculation.” Id., at *23-26
- Guam
In a retaliation case, Hill v. Booz Allen Hamilton, Inc., No. 07-00034, 2011 U.S. Dist. LEXIS 132287 (D. Guam Nov. 16, 2011) defendant opposed application of Cat’s Paw because the decision maker made the decision to fire Plaintiff and had no knowledge of Plaintiff's billing investigations (the motive for retaliation). The Court acknowledged that Plaintiff must prove that one of the decision maker’s subordinates set in motion the decision to terminate Plaintiff because of her protected activity, and that the subordinate was involved in or influenced Doolittle's decision to terminate Plaintiff.” Id., at *31-33.
- Washington
In Purcell v. Am. Legion, 44 F. Supp. 3d 1051, (E.D. Wash. 2014) a retaliation case, Plaintiffs assert that the discriminatory animus of a non-decision maker towards them arising from EEOC claims was the actual causal factor in their termination. This raised a question of triable fact as to the actual degree of influence. “The credibility of Mr. Powell, the degree to which Mr. Powell leveraged his influence over the decision maker, who made the ultimate decision to terminate the Plaintiffs, the degree to which any fact finding investigation was done into the reported computer policy violations, and the temporal proximity impact are material questions in dispute for a jury to hear and decide.” Id., at p. 1058-59.
In Siddiqui v. Univ. of Wash., No. C14-349RAJ, 2015 U.S. Dist. LEXIS 34628 (W.D. Wash. Mar. 18, 2015) Plaintiff’s wrongful discharge case failed for lack of evidence as to whether the racial bias of the non-decision making employee, actually proximately caused (i.e. influenced) the termination. “Nonetheless, a jury could conclude that those are beliefs based on race or national origin. Moreover, a jury could conclude that Dr. Vogel harbored the same beliefs when Mr. Siddiqui was still working at the NPRC. ….There is no evidence, direct or circumstantial, that bias motivated Dr. Anderson's decision. …He drew independent conclusions based on objective evidence. Dr. Vogel did not recommend any course of action. Dr. Anderson decided Mr. Siddiqui's fate. Under these circumstances, it is likely that Dr. Anderson's judgment, rather than Dr. Vogel's input, was the proximate cause of Mr. Siddiqui's adverse employment action. But even if was not, Mr. Siddiqui cannot prove that Dr. Vogel's bias was a substantial factor in Dr. Anderson's decision unless he can prove that bias was a substantial factor in causing Dr. Anderson to consider that objective evidence. The first obstacle to doing so is that Dr. Vogel was not the only source of that evidence. Dr. Hotchkiss confirmed all or nearly all of Dr. Vogel's assessments, and there is no evidence that she harbored a racial bias.” Id., at *29-36.
- Idaho
In Vasquez v. City of Idaho Falls, No. 4:16-cv-184-DCN, 2017 U.S. Dist. LEXIS 211031 (D. Idaho Dec. 20, 2017) the influence of the biased non-decision making employee was not proven to proximately cause the adverse action. Here, the biased employee was shown to be himself mistrusted at the company. “At oral argument, the City made it clear that Baird no longer works for the City of Idaho Falls and would, presumably, have no qualms providing evidence to Vasquez that would be detrimental to the City. This is a gaping hole in Vasquez's case. …Due to [an] investigation, Martin maintains, Baird was not acting as a supervisor when the City terminated Vasquez and the City did not consult Baird before taking this action. .. Because the City has provided evidence that Baird did not participate in the decision to terminate Vasquez, and Vasquez has failed to counter this evidence, there is no question of material fact as to whether Vasquez will ultimately succeed on his cat's paw theory.” Id., at *25-26.
In Miller v. Lemhi Cty., No. 4:15-cv-00156-DCN, 2018 U.S. Dist. LEXIS 34835 (D. Idaho Mar. 2, 2018) Cat’s Paw theory was relevant to an in limine motion. Because “Miller's cat's paw’ theory of the case calls the motives of County employees into question, the Court should allow those employees to testify about all of the factors motivating their complaints about Miller, including both the alleged timecard falsification and abusive conduct…. The evidence of Miller's alleged abusive conduct is at least somewhat relevant because, as evidenced by the termination notice, the County factored it in, if minimally, to its decision to terminate Miller. This evidence could weaken Miller's case that the allegations of timecard fraud were the proximate cause of Miller's termination…. it is not clear to the Court that evidence of the abusive conduct will confuse the jury or cause undue delay as mixed-motive cases routinely involve the presentment of evidence on multiple factors that may have motivated the employer. “Id., at *13-16.
- Hawaii
In Khufu v. Jones Retail Corp., No. 10-00262 LEK-BMK, 2011 U.S. Dist. LEXIS 58445 (D. Haw. May 31, 2011) the Court allowed a claim to survive summary judgment based on slight evidence that the non-decision making employee was biased. “There is, however, some evidence – albeit slight – of conduct by Plaintiff's supervisors that raises an issue of fact regarding unlawful animus. For example, Plaintiff states that in November 2007, he ‘was instructed by Santiago to tell a black male who had requested an employment application that she was not available and that he would be wasting his time by filling ou[t] the application.’ … Plaintiff argues that there is evidence of Santiago's bias during his initial application and hiring, although she made no statement explicitly referencing Plaintiff's race, color, or age. Santiago's alleged statement discouraging Samuelsson from hiring Plaintiff, coupled with Plaintiff's assertion that Samuelsson told him that Defendants did not normally hire black men of his age, could support an inference of unlawful animus. Further, Santiago was responsible for preparing the work schedule that conflicted with Plaintiff's Spring Semester schedule, and which eventually led to his termination for violation of the attendance policy.” Id., at *35-37.
