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2nd Cir. Adds More Claws to Cat's Paw Discrimination Theory

By Casey C. Sullivan, Esq. | Last updated on

A company can be held responsible for the retaliatory actions taken by one co-worker against another, even when those workers are just low-level employees, the Second Circuit ruled on Monday.

The decision makes it easier for employers to be held liable under a "cat's paw" theory of liability. "A what?" you ask. A cat's paw. That is, the sort of obscure theory of liability coined by Seventh Circuit Judge Richard Posner and relating to an ancient Aesop fable. The gist: as a cat paws one toy, causing it to hit another, so to can employers be held responsible when one employee manipulates them into taking discriminatory or retaliatory action against another.

Unwanted Sexting and an Inadequate Investigation

Here are the facts, in brief. In 2013, Julia Vasquez began working for Empress Ambulance Services. Her coworker, Tyrell Gray, soon began putting the moves on her until one day, Vasquez alleges, Gray sent her an unsolicited text with a picture of his erect penis. Vasquez reported the incident and Empress began an investigation.

That investigation involved the company meeting with Gray, who showed them allegedly doctored text messages which made the unwanted sexting appear consensual. Empress declined to see Vasquez's contradictory evidence and both Vasquez and Gray were fired, with Vasquez let go on the grounds that she had been the one engaged in sexual harassment.

Vasquez sued, but her lawsuit was tossed out in district court, under the theory that Empress couldn't be held accountable for Gray's retaliatory animus, since Gray was only, as the Second Circuit describes him, "a low-level employee with no decisionmaking authority."

Embracing the Cat's Paw

Enter the cat's paw. It's on this theory of liability that Vasquez built her case. As Judge Guido Calabresi wrote in his opinion, that theory is based off one of Aesop's fables, in which "a wily monkey flatters a naïve cat into pulling roasting chestnuts out of a roaring fire for their mutual satisfaction," only to eat them himself, leaving the poor cat "with a burnt paw and no chestnuts."

Seems pretty straightforward, right? In employment discrimination cases, the cat's paw metaphor "refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive."

The Supreme Court approved of the theory in 2011, in Staub v. Proctor Hospital, but had left it an open question whether the cat's paw theory could reach so far as to cover a biased, low-level employee, rather than someone with supervisory power.

It can, the Second Circuit ruled. Empress's negligent investigation provides an independent basis for treating Gray as its agent, the court found. "Once deemed Empress's agent, Gray stands in the same shoes as Staub's 'supervisor,' and is equally able to play the monkey to Empress's cat."

Such a holding comports with the Second Circuit's own caselaw, Judge Calabresi wrote, as well as with the findings of several other circuit courts, ruling, in sum, that "if the employer's own negligence gives effect to the employee's animus and causes the victim to suffer an adverse employment action," the low-level status of that employee can be no shield for an employer's liability.

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