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Second Circuit Applies Cat's Paw Liability to Title VII Retaliation Claim Based on Conduct of Low-Level Co-Worker
Practical Law Legal Update w-003-2909 (Approx. 5 pages)
Second Circuit Applies Cat's Paw Liability to Title VII Retaliation Claim Based on Conduct of Low-Level Co-Worker
by Practical Law Labor & Employment
| Published on 06 Sep 2016 • USA (National/Federal) |
In Vasquez v. Empress Ambulance Service, Inc., the US Court of Appeals for the Second Circuit held that the "cat's paw" theory may be used to support recovery for a retaliation claim in violation of Title VII of the Civil Rights Act of 1964 (Title VII). An employee's retaliatory intent can be attributed to an employer if the employer's negligence was the root cause of the retaliation and resulting adverse employment action.
On August 29, 2016, in Vasquez v. Empress Ambulance Service, Inc., the US Court of Appeals for the Second Circuit held that the "cat's paw" theory may be used to support recovery for a retaliation claim in violation of Title VII. An employee's retaliatory intent can be attributed to an employer if the employer's negligence was the root cause of the retaliation and resulting adverse employment action. The Second Circuit vacated a district court judgment that held that an employer could not be held responsible for the retaliatory actions of a low-level employee with no decision-making authority, despite the fact that the retaliation hinged on input from the low-level employee. ( (2d Cir. Aug. 29, 2016).)
Background
Andrea Vasquez was an emergency medical technician (EMT) working for Empress Ambulance Service, Inc. One of her fellow employees (Gray) repeatedly made unwanted romantic and sexual advances towards her. When Gray sent her unsolicited sexual photographs of himself while she was on a work shift, Vasquez notified her superior and filed a formal complaint of sexual harassment. In an attempt to avoid being punished for his alleged behavior, Gray provided the employer with false documents, including manipulated text messages purportedly showing Vasquez soliciting and engaging in a sexual relationship with him. Vasquez's superiors believed Gray and refused to view or consider Vasquez's contradictory evidence. Empress terminated Vasquez's employment for allegedly sexually harassing Gray. Vasquez sued Empress under Title VII and the New York State Human Rights Law, alleging wrongful termination in retaliation for her sexual harassment complaint.
The district court dismissed Vasquez's suit, holding that Empress could not be held responsible for the retaliatory actions of a low-level employee with no decision-making authority. Vasquez appealed.
Outcome
The Second Circuit:
- Vacated the judgment of the district court and remanded the matter for further proceedings.
- Held that:
- the "cat's paw" theory may be used to support recovery for retaliation claims in violation of Title VII; and
- an employee's retaliatory intent can be imputed to his employer if the employer's negligence gives effect to the employee's retaliatory animus and causes the retaliatory adverse employment action against the victim.
The Second Circuit noted that:
- "Cat's paw" liability refers to a situation where an employee is subjected to an adverse employment action by a supervisor who has no discriminatory motive, but who has been manipulated by a subordinate who has discriminatory motive and intended the adverse employment action (Cook v. IPC Intern. Corp., 673 F.3d 625, 628 (7th Cir. 2012)).
- When a supervisor, as an agent of the employer, effectuates or rubber-stamps a discriminatory employee's prejudice, that prejudice can be imputed to the employer and can be used to hold the employer liable for the employee's discrimination (Cook, 673 F.3d at 628; Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990); Nagle v. Marron, 663 F.3d 100, 117 (2d Cir. 2011)).
- The Second Circuit had not previously accepted or rejected the "cat's paw" approach in Title VII cases, but permitting the approach accorded with the circuit's precedent in employment discrimination cases stating that absent clear bias by the ultimate decision-maker, a Title VII plaintiff can succeed if the biased individual had a meaningful role in the decision-making process (Nagle, 663 F.3d at 118; Holcomb v. Iona Coll., 521 F.3d 130, 143 (2d Cir. 2008); Bickerstaff v. Vassar Coll., 196 F. 3d 435, 450 (2d Cir. 1999)).
- The US Supreme Court had approved cat's paw liability under the Uniformed Services Employment and Reemployment Rights Act (USERRA), and sister circuits had embraced its application to Title VII retaliation cases (see Staub v. Proctor Hosp., 562 U.S. 411, 417 (2011); Zamora v. City of Houston, 798 F.3d 326, 332-33 (5th Cir. 2015); EEOC v. New Breed Logistics, 783 F.3d 1057, 1069-70 (6th Cir. 2015); Bennett v. Riceland Foods, Inc., 721 F.3d 546, 551-52 (8th Cir. 2013); Hicks v. Forest Preserve Dist. of Cook Cty., Ill., 677 F.3d 781, 789-90 (7th Cir. 2012)).
- In the hostile work environment context, the Supreme Court noted that an employer can be held liable for an employee's behavior if the employer knew or should have known about the conduct and did not stop it (Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758-59 (1998)).
- Ellerth could be read to hold an employer liable under Title VII when, through its own negligence, the employer gives effect to the retaliatory intent of one of its employees. This imputed liability applies to low-level employees as well as supervisors (Velazquez-Perez v. Developers Diversified Realty Corp., 753 F.3d 265, 273 (1st Cir. 2014).
- When considering the legitimacy of an employer's reason for an employment action, the court looks to what motivated the employer, not just the truth of the allegations against the plaintiff (McPherson v. N.Y.C. Dep't of Educ., 457 F.3d 211, 216 (2d Cir. 2006).
The Second Circuit found that:
- Vasquez could recover against Empress if the company was negligent in allowing Gray's false allegations made against Vasquez, and the retaliatory intent that accompanied them, to achieve their goal of an adverse employment action against Vasquez.
- The fact that Gray was a low-level employee did not prevent Empress from being accountable for his unlawful intent, since its negligence allowed Gray's retaliatory animus to reach fruition.
- Empress was negligent in crediting Gray's account while ignoring the accusations and evidence provided by Vasquez, when it should have known of Gray's retaliatory animus. This negligence allowed Gray's accusations to form the basis for Empress's adverse employment action against Vasquez. Gray was essentially given a decisive role in the termination.
- Vasquez sufficiently pled Empress's negligence, pleading facts from which a reasonable person could infer that Empress should have known that Gray's allegations were retaliatory and should not have been trusted:
- Vasquez's accusations gave Gray an obvious reason to lie and make accusations against Vasquez, and should have caused Empress to treat the situation as a he-said, she-said, especially given Vasquez's attempts to provide contradictory information;
- the timing of Gray's complaint was suspicious, because if his claims were accurate, Vasquez's own harassment complaint would have come just hours after she willingly exchanged explicit messages with Gray; and
- on the morning of Vasquez's accusations, Gray strangely happened to have copies of their alleged conversations printed and ready to submit to Empress.
Practical Implications
In Vasquez, the Second Circuit joined the US Court of Appeals for the First Circuit in applying the "cat's paw" liability theory to Title VII employment discrimination cases. Employers should be aware that through their own negligence, employers can be deemed liable for the discriminatory conduct of their employees. It is also important for employers to remember that this potential liability does not just apply to actions by supervisory employees, but also to those of low-level employees who have no explicit decision-making authority, but whose input may factor into adverse employment decision-making. To prevent this heightened risk of litigation, employers should promote their own non-discrimination policies and ensure that employees are abiding by these policies as well as the federal and local non-discrimination laws. Employers should use common sense when relying on others in termination decisions and should confirm allegations before taking rash and potentially irreversible action. Failure to thoroughly investigate and instead rely blindly on potentially false and retaliatory input from others could result in a Title VII violation.