cats paw

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 The “Cat’s Paw” doctrine describes the situation where an employer may be liable for employment decisions based on the discriminatory animus of an employee who influenced — but who did not make — an employment decision.  The phrase comes from an Aesop fable where a conniving monkey convinces a naïve cat to reach into a fire to get roasting chestnuts that they can both enjoy.  But after the cat grabs the chestnuts, the monkey takes off with the chestnuts and leaves the cat with nothing but burnt paws.

In 2011, the U.S. Supreme Court endorsed the “Cat’s Paw” doctrine with respect to biased supervisors. Meaning an employer can be held liable where an ultimate decision-maker (such as a high-level manager) makes a decision (such as terminating an employee) based solely on untruthful reports from a biased lower-level supervisor. The U.S. Supreme Court, however, expressed no view as to whether the doctrine applies when a decision-maker is influenced by a biased lower-level, non-managerial employee.

In the recently decided Vazquez v. Empress Ambulance Service, Inc. opinion, the Federal Second Circuit Court of Appeals in New York expanded on this doctrine. Vazquez (an Emergency Medical Technician) complained to her employer that Gray (a Dispatcher) had texted her graphic sexual photos. The employer assured Vazquez that that behavior was not tolerated and that it would investigate. When Gray learned of her complaint, fearing for his job, he asked another employee to lie and tell management that he and Vasquez were in a consensual relationship. The employee refused to lie. Gray then doctored a text-message exchange that he had with another woman to trick management into thinking that he and Vazquez were in a consensual relationship. In response, Vazquez offered to show management her own phone.  Management, however, declined Vazquez’s offer and terminated her for “having an inappropriate sexual relationship” with Gray – telling Vazquez it “knew the truth” and had seen Gray’s “proof” of her improper conduct.

In Vazquez’s lawsuit, Vazquez claimed she was terminated in retaliation for making the harassment complaint. Vazquez argued the “Cat’s Paw” doctrine applied because the employer’s decision was influenced by Gray’s biased and false report.  The employer argued the doctrine did not apply because Gray was low-level employee with no decision-making authority.

The employer won at the trial court level. But the Second Circuit reversed — holding that an employer may be held liable under the “Cat’s Paw” theory “regardless of the [reporting] employee’s role within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim to suffer an adverse employment action.  The Second Circuit found the employer was negligent in blindly “crediting [Gray’s] accusations to the exclusion of all other evidence” and that its negligence was enough to hold it accountable – regardless of Gray’s non-managerial status.

The take-away here is that instead of rubber-stamping an adverse employment decision (which is not limited to terminations), employers should conduct an independent review of alleged misconduct and not rely exclusively on a manager’s report. The independent review should include an analysis of pertinent documents (such as the text-message exchange in the Vazquez case), interviews of the employee accused of misconduct, and interviews of any other witnesses with knowledge of the misconduct. That way, employers can avoid getting burned as the credulous cat to the malevolent monkey.