10 Oct “CAT’S PAW” THEORY OF LIABILITY EXTENDED TO FMLA RETALIATION CLAIMS
In employment discrimination, the phrase “Cat’s Paw” refers to a situation “in which a biased subordinate, who lacks decisionmaker power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.” In Marshall v. The Rawlings Co., LLC, (2016), the Sixth Circuit recently continued the expansion of the “Cat’s Paw” theory into employment law, extending the theory to claims of FMLA retaliation.
Gloria Marshall began working for The Rawlings Company in their cost containment department in 2008, starting out as a Workers’ Compensation Analyst, before being promoted to Team lead in 2011. Marshall thereafter went on FMLA to seek treatment for her mental health symptoms. Upon her return to work, Jeff Bradshaw, Rawlings Vice President, allegedly became concerned over the formation of a backlog of work. Shortly thereafter, Marshall was demoted from Team Lead to Analyst. Marshall alleged that, around this time, Bradshaw engaged in a pattern of harassment towards Marshall, including antagonizing and singling her out in front of colleagues and, in an apparent reference to her recent FMLA leave, asking her if she was “planning on being out any time soon?” Thereafter, Marshall took a second FMLA leave in addition to intermittent FMLA leave. Upon returning to work, Marshall was confronted by Mike Elsner, Rawlings Division Chief, for her “disengaged attitude” at work. Only then did Marshall report Bradshaw’s alleged harassment. Thereafter, a meeting was called between Elsner, Marshall, and Laura Plumley, the Division President, to discuss these allegations. After the meeting, Plumley concluded that Marshall’s claim of harassment was merely a deflection away from her performance issues. Plumley then met with George Rawlings, the Company’s owner, who made the decision to terminate Marshall for “making false allegations of harassment in order to avoid the consequences of her own excessive absences from her desk the day before.”
Marshall’s subsequent lawsuit alleged, among other things, that she had been retaliated against for taking FMLA leave. The district court rejected her argument, granting summary judgment in favor of Rawlings. On appeal to the Sixth Circuit, the court noted Marshall’s claim “depend[ed] on proving that biased lower-level supervisors influenced the ultimate decision makers,” finding that such a claim could only proceed under the “Cat’s Paw” theory of liability; the court then decided to extend the “Cat’s Paw” theory to FMLA retaliation claims.
The “Cat’s Paw” theory rests on the idea that the employer’s organizational structure does not always reflect the amount of deference given to the opinions of lower level supervisors. With this in mind, the “Cat’s Paw” theory guards against ultimate decisionmakers blindly adopting the recommendations of biased lower-level supervisors and thus “forecloses a strategic option for employers who might seek to evade liability . . . through willful blindness as to the source of reports and recommendations.”
The court then turned to the implications of the “Cat’s Paw” theory on FMLA retaliation claims. First, “Cat’s Paw” theory applies “with equal force when there are multiple layers of decisionmakers.” Second, in relation to the McDonnell Douglas framework used to evaluate discrimination claims, the plaintiff “must satisfy the requirements of the McDonell Douglas framework and [then] prove that the decisionmaker was the cat’s paw of a biased subordinate.” Lastly, the court found that the honest belief rule, which holds that an employer’s honest belief in their legitimate non-discriminatory reason does not become pretextual simply because the employer is ultimately mistaken, has no effect on the “Cat’s Paw” analysis.
Marshall represents the recent expansion of the “Cat’s Paw” theory to vast swaths of employment law. With this in mind, it is vital that employers take steps to ensure their decisionmaking process is insulated from the bias of lower level supervisors. However, this doesn’t mean that the opinions of lower-level supervisors aren’t valuable. These opinions should be part of a larger investigation, because as at the end of the day, an independent investigation conducted by the ultimate decisionmaker is an employer’s best shield against “Cat’s Paw” liability.
Please contract Masud Labor Law Group if you have any questions or concerns related to the “Cat’s Paw” theory of liability.