Maria Castro, Associate Member, University of Cincinnati Law Review
The most common employment discrimination claim is an individual disparate treatment claim.[1] Individual disparate treatment claims typically arise when an individual alleges the employer treated the employee differently based on a protected trait.[2] Individuals commonly rely on circumstantial evidence to prove individual disparate treatment claims.[3] In McDonnell Douglas v. Green, the Supreme Court developed a three-part burden-shifting test to assist courts in evaluating individual disparate treatment claims based on circumstantial evidence.[4] Since this decision, the application of McDonnell Douglas has continued to confuse plaintiffs, defendants, attorneys, courts, and scholars. One area of confusion that persists is the appropriate application of cat’s paw liability claims to the McDonnell Douglas framework.
The “cat’s paw” is a theory of vicarious liability, which establishes that an employer may be held liable for the discriminatory and retaliatory acts of its subordinate employees.[5] The concept arises when a subordinate employee, lacking ultimate decision-making power, has an impermissible bias against another employee and uses this bias to influence the actions of the ultimate decision-maker.[6] As a result, the ultimate decision-maker takes an adverse action against its employee, without realizing that this action was influenced by another employee’s impermissible bias. Plaintiffs in cat’s paw liability cases do not allege that the decision-maker had an impermissible bias against the plaintiff. Rather, the plaintiff seeks to impute the bias of another employee into the ultimate decision maker. In Staub v. Proctor Hospital, the Supreme Court held that cat’s paw liability claims apply to the Uniformed Services Employment and Reemployment Rights Act (USERRA).[7] Since this decision, the application and scope of Staub has continued to confuse plaintiffs, defendants, attorneys, courts, and scholars. The First Circuit and the Sixth Circuit have utilized different analyses for the application of cat’s paw liability cases to the McDonnell Douglas framework.[8] The First Circuit integrates the cat’s paw liability analysis into the McDonnell Douglas framework, whereas the Sixth Circuit analyzes each concept separately. The confusion in analysis demonstrates that the McDonnell Douglas framework should not be extended to other employment cases.”
Supreme Court Holdings
Individual Disparate Treatment, Circumstantial Evidence: McDonnell Douglas
In McDonnell Douglas, the Supreme Court developed the framework for courts to use when determining an employer’s intent in an individual disparate treatment claim.[9] The plaintiff in McDonnell Douglas alleged that his employer refused to rehire him because of his race.[10] The Court granted certiorari to clarify the standards governing the disposition of an action challenging employment discrimination.[11] The Court recognized that the purpose of Title VII was to “assure equality of employment opportunities and eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.”[12] The Court also recognized that Congress did not intend to guarantee a job to every person regardless of qualifications.[13] Finally, the Court emphasized the need to balance the interests of efficient and trustworthy work with fair and racially neutral employment decisions.[14]
To balance these interests, the Court created a framework that shifts the burden of production.[15] The Court held that a plaintiff must first carry the initial burden of establishing a prima facie case of discrimination based on a protected trait.[16] A prima facie case consists of a showing that: (1) the plaintiff belongs to a protected class; (2) the plaintiff applied and was qualified for a job for which the employer was seeking applicants; (3) despite the plaintiff’s qualifications, the plaintiff was rejected; and (4) the position remained open, and the employer continued to seek applicants.[17] The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employer’s decision.[18] Finally, the burden shifts back to the plaintiff to prove that the employer’s preferred reason was pretext for discrimination.[19]
Cat’s Paw Liability: Staub v. Proctor Hospital
In 2011, the Supreme Court held that cat’s paw liability applies to the Uniformed Services Employment and Reemployment Rights Act (USERRA), a statute that the Court recognized was similar to Title VII. The plaintiff in Staub was a member of the United States Army Reserve and alleged that his employer terminated him because of his military status, in violation of USERRA. Under USERRA, an employer may not discriminate against an individual on the basis of military membership or obligation.[20] The plaintiff’s immediate supervisors were hostile towards his military obligations and placed him on a disciplinary warning for allegedly violating a company rule.[21] While under a disciplinary warning, the plaintiff’s coworker complained to the employer’s chief operating officer. The chief operating officer reviewed the plaintiff’s personnel file and fired the plaintiff. The plaintiff sued his employer for discrimination, alleging that his supervisors’ reports were impermissibly biased against him and that the chief operating officer relied on the biased reports when terminating the plaintiff. Accordingly, the plaintiff sought to impute the impermissible bias of his supervisors into the ultimate decision-maker by using cat’s paw liability theory.
When considering whether cat’s paw liability applied, the Supreme Court first noted that the text of USERRA was very similar to that of Title VII.[22] Like Title VII, USERRA requires that the discrimination be a “motivating factor” in the adverse action.[23] Applying this to the case, the Court recognized that the decision to terminate an employee on the basis of a biased report might constitute a “factor” or a “causal factor,” but it did not constitute a “motivating factor.” The Court next proceeded to the issue of causation and found that as long as “the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter requirement to be liable under USERRA.”[24] Therefore, the subordinate employee’s actions may become the proximate cause of the employee’s injury, so long as the actions have some direct relation to the injury. Accordingly, the Court held that cat’s paw theory of liability may be applied to USERRA claims when a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action if that act is a proximate cause of the ultimate employment action.[25]
Lower Court’s application of McDonnell-Douglas and Cat’s Paw
First Circuit: Ameen v. Amphenol
In Ameen v. Amphenol, the First Circuit applied cat’s paw liability to a claim of FMLA retaliation, but ultimately held that the plaintiff could not prove retaliation.[26] The plaintiff in Ameen alleged that his employer terminated him for taking FMLA leave after the birth of his child.[27] After returning from his FMLA leave, the plaintiff failed to follow proper procedures after making a mistake during his shift.[28] When his supervisor found out, he issued a written warning to the plaintiff and informed him that if he failed to follow proper procedures again, he would be fired.[29] Two of the plaintiff’s co-workers reported that the plaintiff was cheating on his timesheets by taking an extended lunch without clocking out for it.[30] Upon review of the plaintiff’s timesheets, the supervisor discovered that the employee had been lying on his timesheets for two years. The supervisor reported this to the company director, who subsequently fired the employee.[31] The plaintiff claimed that he was not fired due to the few extra minutes on his timesheet, but that he was fired due to taking FMLA leave.[32] The plaintiff did not allege that the company director was biased against him; rather, he alleged that his supervisor was biased against him and that the company director’s decision to fire him was influenced by his supervisor’s bias. Therefore, the plaintiff sought to apply cat’s paw liability.
When considering whether to apply cat’s paw liability to the plaintiff’s FMLA retaliation claim, the First Circuit recognized that the issue of whether the employer’s decision to take an adverse action was motivated by retaliation was similar to the issue of intent raised in Title VII.[33] Accordingly, the court found that it needed to apply the three-part burden shifting McDonnell Douglas framework to analyze the employer’s motivation.[34] First, McDonnell Douglas requires the plaintiff to make a prima facie case of discrimination or retaliation.[35] Once the plaintiff establishes this, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the termination.[36] Once the employer proffers its reason, the burden shifts back to the plaintiff to show that the employer’s stated reason was in fact a pretext for retaliating against him for taking protected FMLA leave.[37]
The court assumed that the plaintiff established the prima facie case of FMLA retaliation.[38] Next, the court found that the employer offered a legitimate nondiscriminatory reason for terminating the plaintiff: he lied on his timesheets.[39] When considering whether this reason was pretext, the court provided that the plaintiff must show that the retaliator knew about the plaintiff’s use of FMLA leave.[40] Here, the decision-maker was unaware of the plaintiff’s FMLA leave. As a result, the plaintiff could only prevail if he could impute his supervisor’s knowledge and animus into the decision-maker. The court held that the plaintiff’s supervisor was not biased against the plaintiff for taking FMLA leave.[41] Accordingly, there was no retaliatory animus to impute into the decision-maker and therefore the employer did not retaliate against the plaintiff for taking FMLA leave.
Sixth Circuit: Marshall v. Rawlings Company
In Marshall v. Rawlings Co., the Sixth Circuit applied cat’s paw liability under a slightly different analysis.[42] The plaintiff in Marshall took FMLA leave to receive treatment for her mental health.[43] After returning from leave, she experienced a backlog of work and had a difficult time getting back on track.[44] Once she caught back up on her work, her supervisor worried that she might fall behind again. The supervisor expressed these concerns to the company’s in-house attorney. As a result, the in-house attorney demoted the plaintiff, claiming that the decision was based on the plaintiff’s performance-related issues.
One year after her first FMLA leave, the plaintiff took another FMLA leave.[45] During a meeting with a different supervisor regarding her performance issues, the plaintiff claimed that her original supervisor harassed her for taking FMLA leave. The second supervisor reported this to the same in-house attorney. The in-house attorney believed that the plaintiff fabricated the allegation to deflect from her own performance-related issues. The company owner agreed with the in-house attorney and fired the plaintiff. The plaintiff alleged that her immediate supervisors were biased against her and that the in-house counsel’s decision to demote her and the company owner’s decision to fire her were influenced by her supervisors’ bias. Therefore, the plaintiff sought to apply cat’s paw liability.
When considering how to apply cat’s paw liability to FMLA retaliation claims, the court looked to Sixth Circuit precedent which provided that to prove FMLA retaliation, the plaintiff “must show that taking leave was a causal factor” in the employer’s decision to demote and terminate her.[46] She may show this causal connection through either direct or indirect evidence. The court then needed to clarify whether the McDonnell-Douglas burden-shifting framework applies to cat’s paw liability claims. The Sixth Circuit found that a plaintiff alleging FMLA retaliation based on cat’s paw theory of liability must first satisfy the requirements of the McDonnell Douglas framework and then prove that the decision-maker was the cat’s paw of a biased subordinate.[47] Therefore, the Sixth Circuit analyzes these two issues separately.
The Relationship between McDonnell-Douglas and Cat’s Paw
Since its initial application, there has been much confusion over when and how cat’s paw liability theory applies to employment discrimination and retaliation cases. Uncovering the employer’s motivation is central to establishing liability under such claims.[48] To hold an employer liable for employment discrimination, the employer must have been motivated by the protected trait when it took an adverse action against the individual. To hold an employer liable for employment retaliation, the employer must have been motivated by the individual’s choice to exercise a protected right under the employment statute. McDonnell-Douglas is the leading framework for determining single-motive, individual disparate treatment claims using circumstantial evidence. It is used to determine the employer’s intent. Cat’s paw liability poses a unique issue regarding the employer’s motivation because the ultimate decision maker who took the adverse action did not have the required discriminatory animus. Accordingly, cat’s paw liability is also used to determine the employer’s intent. However, the Court in Staub failed to articulate the relationship between cat’s paw liability and McDonnell-Douglas. As a result, lower courts have struggled to determine how cat’s paw liability interacts with McDonnell Douglas. Employers have had little to no guidance regarding how to avoid liability and employees discriminated against are not treated uniformly in cat’s paw scenarios based on the circuits in which their claims are brought.[49]
The First Circuit applied cat’s paw liability theory during the pretext stage of McDonnell Douglas. The Sixth Circuit held that courts must do two separate analyses: first a McDonnell Douglas analysis and if that passes, then a cat’ paw liability theory analysis. Both of these approaches are unnecessarily confusing. McDonnell Douglas was originally applied Title VII case. However, courts apply this framework to various types of employment discrimination and retaliation statutes. Although many of these statutes are similar to Title VII, McDonnell Douglas has proven to be a complicated framework that should not be further extended to other employment statutes.[50]
Many scholars have argued that it is time to get rid of McDonnell Douglas altogether.[51] One way to eliminate McDonnell Douglas is to apply the cat’s paw liability framework to all individual disparate treatment claims utilizing circumstantial evidence. Only a slight modification is necessary. For example, instead of utilizing the three-part burden-shifting framework to determine the employer’s intent, courts could require the plaintiff to prove that the act was motivated by a discriminatory animus intended to cause an adverse employment action, which is the proximate cause of the final decision.[52] Therefore, rather than attempting to fit cat’s paw liability into the existing McDonnell Douglas framework, courts should simply eliminate the McDonnell Douglas framework and analyze intent under a cat’s paw liability analysis. Because cat’s paw liability is used to determine the employer’s intent, it is unnecessary for a court to analyze intent again under McDonnell Douglas.
Conclusion
Since the Supreme Court developed the three-part burden-shifting framework of McDonnell Douglas for analyzing the employer’s intent in an employment discrimination claim, lower courts have struggled to determine how to apply the analysis. This confusion was expanded in Staub when the Supreme Court developed the cat’s paw theory of liability to determine the employer’s intent in an employment discrimination claim that alleges the ultimate decision maker was influenced by the discriminatory animus of another employee. Both concepts require the court to determine whether the employer possessed discriminatory animus when it took an adverse action against the plaintiff. Yet, both concepts provide completely different analyses. The McDonnell Douglas framework is a much more complicated method to get to the same answer the cat’s paw liability theory reaches. Accordingly, it does not make sense to incorporate cat’s paw liability theory to McDonnell Douglas. This confusion is demonstrated in the lower courts’ struggle to apply the two concepts to one another. The First Circuit applied cat’s paw liability theory to the pretext stage. The Sixth Circuit analyzed the two frameworks separately: first doing a McDonnell Douglas analysis and second doing a cat’s paw liability analysis. Both decisions were confusing and unnecessary. Cat’s paw liability determines whether the employer possessed the required intent. Accordingly, it is unnecessary for a court to also determine the employer’s intent under a McDonnell Douglas analysis.
[1] Susan Grover, Sandra F. Sperino, & Jarod S. Gonzalez, Employment Discrimination 55 (2014).
[2] Id.
[3] Id. at 56 (circumstantial evidence is evidence that allows the jury to infer that a fact is true, rather than directly supporting the truth of that fact).
[4] Id.
[5] John S. Collins, Another Hairball for Employers? “Cat’s Paw” Liability. for the Discriminatory Acts of Co-Workers After Staub v. Proctor Hosp., 64 Baylor L. Rev. 908, 912 (2012).
[6] Devin Muntz, Extending the Cat’s Paw Too Far into the Fire: Rejecting the Second Circuit’s Extension of the Cat’s Paw Theory of Liab. to Co-Worker Discriminatory & Retaliatory Animus, 2017 U. Chi. Legal F. 709, 710 (2017).
[7] Staub v. Proctor Hosp., 131 S.Ct. 1186 (2011).
[8] Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63 (1st Cir. 2015); Marshall v. The Rawlings Co. LLC, 854 F.3d 368 (6th Cir. 2017).
[9] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973).
[10] Id. at 796.
[11] Id. at 798.
[12] Id. at 800.
[13] Id.
[14] Id. at 801.
[15] Id. at 802.
[16] Id.
[17] Id. (the court noted that the prima facie proof required will vary depending on the facts).
[18] Id. at 802.
[19] Id. at 804.
[20] Staub. at 1190.
[21] Id. at 1189 (the plaintiff’s military obligations included attending drill once a month and training for two weeks a year).
[22] Id. at 1191.
[23] Id. at 1192.
[24] Id.
[25] Id. at1194.
[26] Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63 (1st Cir. 2015).
[27] Id. at 65.
[28] Id.
[29] Id. at 66.
[30] Id.
[31] Id.
[32] Id. at 67.
[33] Id. at 69.
[34] Id.
[35] Id. (To meet the burden of proving a prima facie case under the McDonnell Douglas framework, the plaintiff must show that (1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; (3) there is a causal connection between his protected activity and the employer’s decision to fire him).
[36] Id.
[37] Id. at 69.
[38] Id.
[39] Id. at 70.
[40] Id.
[41] Id. at 73.
[42] Marshall v. The Rawlings Co. LLC, 854 F.3d 368 (6th Cir. 2017).
[43] Id. at 372.
[44] Id. at 373.
[45] Id. at 375.
[46] Id. at 377.
[47] Id. at 379.
[48] Eric Rosoff, Disparate Treatment of Disparate Treatment: Harmonizing Title VII Pretext & Mixed-Motive Jury Instruction Causation Standards in Light of Staub v. Mem. Hosp., 35 Cardozo L. Rev. 2079, 2113 (2014).
[49] Pepper, Staub v. Proctor Hospital: A Tenuous Step in the Right Direction, 16 Lewis & Clark L. Rev. 363, 368 (2012).
[50] Sandra S. Sperino, Litigating the Fmla in the Shadow of Title VII, 8 FIU L. Rev. 501 (2013).
[51] Rosoff, supra note 35 at 2113.
[52] Id.
