Vasquez v. Empress Ambulance Serv., Inc., and the “Cat’s Paw” Approach to Title VII Liability

By: Kyle D. Winnick, Esq.

Associate, Maduegbuna Cooper LLP

In Vasquez v. Empress Ambulance Serv., Inc.,[1] the Court of Appeals for the Second Circuit became the latest circuit to hold that the cat’s paw theory (the “Cat’s Paw Theory”) liability is viable under Title VII of the Civil Rights Act of 1964.  The Cat’s Paw Theory references an Aesop fable, “in which a wily monkey flatters a naïve cat into pulling roasting chestnuts out of a roaring fire for their mutual satisfaction; the monkey, however, devours them fast, leaving the cat with a burnt paw and no chestnuts for its trouble.”[2]  In the context of employment discrimination law, Cat’s Paw Theory liability refers to the situation where the discriminatory animus of a non-decision-maker, typically a supervisor, is imputed to the unbiased decision-maker when the former has singular influence over the latter and uses that influence to cause an adverse employment action.[3]  But the Vasquez court took this one step further by also holding that the Cat’s Paw Theory is applicable even if the biased non-decision-maker is a low-level co-worker, as opposed to the plaintiff’s supervisor, if the employer was negligent in relying on the co-worker’s representations.  This comment discusses Vasquez’s implications and offers advice on compliance.

In Vasquez, the plaintiff complained to her superiors about receiving unsolicited sexual photographs from a non-supervisory co-worker.[4]  Alert to the fact that these actions had been reported to management, the offending employee, Gray, “manipulated a text message conversation on his iPhone to make it appear as though a person with whom he had legitimately been engaging in consensually sexual text banter was” the plaintiff, which he showed management.[5]  Management, wholly adopting Gray’s version of events, and without even viewing the sexual photographs Gray texted to the plaintiff, terminated the plaintiff on the ground that she sexually harassed Gray.[6]  The Second Circuit held that the defendant-employer could be found liable under the Cat’s Paw Theory approach, since Gray, though a non-decision-maker and non-supervisor, “became the entire case against [the plaintiff] when [the defendant-employer] negligently chose to credit his, and only his, account.”[7]  The court clarified that liability will not be imputed where an employer “non-negligently and in good faith, relies on a false and malign report of [a biased] employee[.]”[8]  Thus, distilled to its elements, a non-supervisor’s animus will be imputed to an employer in the Second Circuit if: (1) the non-decision-making employee performs an act(s) motivated by impermissible bias that is intended to cause an adverse employment action; (2) that act(s) in fact proximately causes the plaintiff to suffer the adverse employment action (the “proximate cause prong”); and (3) the decision-maker was negligent in relying on the non-decision-maker’s influence (the “negligence prong”).  (If the biased employee is the plaintiff’s supervisor, only the first two prongs need to be met.)

In unpacking Vasquez’s proximate cause prong, it is useful to consider the development of the Cat’s Paw Theory approach by other courts, which similarly require that the non-decision-maker’s animus be the proximate cause of the relevant adverse action.  For example, in the seminal case of Shager v. Upjohn Co.,[9] the plaintiff, a fifty-year-old salesperson, who was supervised by a twenty-nine-year-old (the “supervisor”), was terminated after ostensibly performing inadequately.  At the summary judgment stage, the plaintiff’s case was quite strong, at least when viewed most favorably to him.  Despite the plaintiff covering a far less promising region than the other, younger salesperson at the company, who was not terminated, the plaintiff’s sales performance was “outstanding,” yet “inexplicably rated marginal by his hostile supervisor.”[10]  This evidence was compounded by the supervisor having made comments suggesting he was “uncomfortable with the older workers under his supervision,” as well as plaintiff’s replacement by an inexperienced and much younger salesperson.[11]  But the wrinkle to the case was that the actual decision to terminate the plaintiff was made not by the supervisor, but an allegedly unbiased “Career Path Committee” (the “Committee”).[12]

Relying on the law of agency, the court, in an opinion by Judge Richard Posner, found that liability would be imputed to the defendant-employer because the Committee’s “decision to fire [the plaintiff] was tainted by [the supervisor’s] prejudice.”[13]  Critically, the court found that the Committee merely rubber-stamped the supervisor’s recommendation, as there was evidence that its deliberations were “perfunctory.”[14]  Presumably, then, had the Committee conducted a thorough, independent investigation of the plaintiff’s performance and found legitimate, non-discriminatory reasons to terminate him, the defendant would have won its summary judgment motion.[15]  Other courts, although employing different verbiage, have generally followed Shager’s standard.[16]

A different scenario therefore presents itself when the decision-maker is not wholly dependent on a single source of information, but instead conducts his/her own investigation, which results in an adverse action for reasons unrelated to the biased supervisor’s assertions; in such a scenario, liability will not be imputed.[17]  For example, in Eiland v. Trinity Hosp.,[18] the plaintiff nurse was fired after a staff physician reported that she injected a pregnant woman with a measles-mumps-rubella vaccine without following proper procedure.  The plaintiff sued, claiming that the staff physician had racial animus against her and had made the report to get her fired.[19]  The court held that even assuming the staff physician reported the incident because of racial animus, there had still been no violation of Title VII, because the supervisor who fired her acted only after reading the staff physician’s incident report, speaking with another supervisor, and confronting the plaintiff herself with the allegations. The supervisor had thus “acted independently and only after she evaluated the circumstances, including [the plaintiff’s] version.”[20]

Thus, Vasquez’s proximate cause prong will most readily be met in those situations where decision-makers fail to independently investigate a supervisor’s recommendation of an adverse employment action.[21]  Or, even if they do perform an independent investigation, they only consider the biased employee’s version of events.[22]  This very much animated the decision in Vasquez.  As the court noted, the defendant-employer “blindly credited Gray’s assertions, obstinately refusing to inspect Vasquez’s phone or to receive any other evidence proffered by Vasquez in refutation.”[23]  In this case, the employer was “at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision.”[24]

But, as explained above, the Vasquez court made clear that causation is not enough if the biased employee is a non-supervisor; in that scenario, “[o]nly when an employer in effect adopts an employee’s unlawful animus by acting negligently with respect to the information provided by the employee, and thereby affords that biased employee an outsize role in its own employment decision, can the employee’s motivation be imputed to the employer and used to support a claim under Title VII.”[25]  In formulating this holding, the court relied on the First Circuit decision of Velazquez-Perez v. Developers Diversified Realty Corp,[26] which is therefore instructive in determining when the negligence prong may or may not be met.

In Velazquez-Perez, a quid pro quo sexual harassment case, the plaintiff was terminated due to the machinations of a scorned human resources employee, Martinez.  Prior to the plaintiff’s termination, he had complained to his supervisors that Martinez had threatened him – often implying that she would have him terminated – after he rejected her romantic overtures.[27]  Martinez eventually complained, in her human resources capacity, about the plaintiff’s alleged misconduct (e.g., being tardy) to his supervisors.[28]  Meanwhile, the plaintiff’s supervisors “began to extensively discuss a number of other accusations against [the plaintiff]” that did not emanate from Martinez.[29]  Eventually, the head of the plaintiff’s office, based on these latter accusations, recommended placing the plaintiff on probation.  But Martinez “was not to be deterred so easily” and after sending management a series of e-mails delineating exaggerated deficiencies in the plaintiff’s performance, he was terminated by one of his supervisors.[30]

In reversing a grant of summary judgment for the defendant-employer, the First Circuit first noted that Martinez’s constant maligning of the plaintiff, which was motivated by quid pro quo harassment, proximately caused his termination.[31]  The court further noted that, although Martinez was not the plaintiff’s supervisor, her animus could be imputed to the defendant-employer because Title VII liability attaches when “an act of discrimination is allowed to cause harm by an employer that knows or reasonably should know of the discrimination.”[32]  In other words, the court found that the defendant-employer was negligent in relying on Martinez’s unverified, tainted representations since it had notice, through the plaintiff’s complaints to his supervisors, that her intentions may have been motivated by impermissible reasons.

The cases discussed, as well as those contained in the endnotes, provide some lessons for employers wishing to comply with Vasquez.  First, an employer should independently investigate an employee’s allegations of illegal bias in their treatment by supervisors or co-workers.  Second, an employer should ensure that an internal complaint procedure exists that allows and requires employees to inform the employer of allegedly illegal bias in employment decisions, even if those decisions are not sufficiently material to rise to the level of an “adverse employment action.”  Third, if the basis for potential discipline and/or termination is predicated on the assertions of a supervisor or co-worker who has been accused of bias, employers should treat those assertions with skepticism and investigate their veracity.  Finally, employers should mandate equal employment opportunity training for its employees.  Taking these steps, especially in combination, should limit employers’ exposure to Cat’s Paw Theory liability.

[1] Vasquez v. Empress Ambulance Serv., Inc., No. 15-3239-CV, 2016 WL 4501673 (2d Cir. Aug. 29, 2016).

[2] Vasquez, 2016 WL 4501673 at *3 (brackets and ellipsis omitted); see also Staub v. Proctor Hosp., 562 U.S. 411, 415 n. 1 (2011).

[3] See Staub, 562 U.S. at 422 (applying the Cat’s Paw Theory to USERRA claims); Cook v. IPC Intern. Corp., 673 F.3d 625, 628 (7th Cir. 2012) (Posner, J.).

[4] Vasquez, 2016 WL 4501673 at *1-2.

[5] Id. at *2.

[6] Id. at *2-3.

[7] Id. at *6.

[8] Id. at *6.

[9] Shager v. Upjohn Co., 913 F.2d 3 98 (7th Cir. 1990).

[10] Id. at 400.

[11] Id. at 401-402

[12] Id. at 404.

[13] Id. at 405.

[14] Id.

[15] Id. at 405 (If the Committee fired the plaintiff “for reasons untainted by any prejudice of [the supervisor’s] against older workers, the causal link between that prejudice and [the plaintiff’s] discharge is severed, and [he] cannot maintain this suit even if [the defendant] is fully liable for [the supervisors] wrongdoing.”).

[16] See, e.g., Laxton v. Gap Inc., 333 F.3d 572, 584 (5th Cir. 2003) (“[T]he discriminatory animus of a manager can be imputed to the ultimate decision-maker if the [manager] … had influence or leverage over” the decision-making process.); Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 285-86 (3d Cir. 2001) (“Under our case law, it is sufficient if those exhibiting discriminatory animus influenced or participated in the decision to terminate.”).

[17] See, e.g., Kregler v. City of New York, 987 F.Supp.2d 357, 368-69 (S.D.N.Y. 2013).

[18] Eiland v. Trinity Hospital, 150 F.3d 747 (7th Cir. 1998).

[19] Id. at 749.

[20] Id. at 752.

[21] See Arendale v. City of Memphis, 519 F.3d 587, 604 n.13 (6th Cir. 2008) (“When an adverse hiring decision is made by a supervisor who lacks impermissible bias, but that supervisor was influenced by another individual who was motivated by such bias, this Court has held that the employer may be held liable under a ‘rubber-stamp’ or ‘cat’s paw’ theory of liability.”); Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (“[T]he 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.”).

[22] See Staub, 562 U.S. at 421 (“We are aware of no principle in tort or agency law under which an employee’s mere conduct of an independent investigation has a claim-preclusive effect.”).

[23] Vasquez, 2016 WL 4501673, at *7.

[24] Staub, 562 U.S. at 421.

[25] Vasquez, 2016 WL 4501673, at *7.

[26] Velasquez-Perez v. Developers Diversified Realty Corp., 753 F.3d 265 (1st Cir. 2014); see also Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013) (In the hostile work environment context, if the harassing employee is the victim’s co-worker, the employer is liable under Title VII only if it was negligent in controlling working conditions.).

[27] Id. at 268.

[28] Id. at 268-69.

[29] Id. at 269.

[30] Id. at 269-70.

[31] Id. at 274.

[32] Id. at 273.

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