Supreme Court Considers "Cat's Paw" Theory

The Supreme Court recently granted certiorari in Staub v. Proctor Hospital (09-400). It will hear and decide the case during its term opening in early October. The central question the Supreme Court will address is in what circumstances an employer may be held liable for unlawful discriminatory motives and actions by someone other than the decision maker. This theory of recovery is known as the “cat’s paw theory” and is taken from the 17th Century fable by French poet Jean de La Fontaine. In Fontaine’s fable, a shrewd monkey convinces a cat to steal chestnuts from a fire. While the cat burns her paw in the process, the monkey enjoys the fruits of the cat’s labor by eating all the chestnuts.

In employment law, “cat’s paw” typically arises under Title VII, the primary law related to workplace discrimination. In the Staub case, however, the theory arose under the Uniformed Services Employment and Reemployment Rights Act (USERRA). After an amicus brief by then Solicitor General Elena Kagan, and now, interestingly, a Supreme Court justice, the Court decided the Staub case is an ideal vehicle to address the lower courts’ inconsistent application of the law in “cat’s paw” cases.

Vincent Staub, a member of the Army Reserves, worked as an angiogram technician at Proctor Hospital in Peoria, Illinois. As a member of the Reserves, he attended required occasional weekend training in addition to two-week training during the summer. Staub’s supervisor, Janice Mulally, grew annoyed with Staub’s Reserve commitments. She frequently criticized the Reserves and intentionally scheduled him on weekends when he had training. In the weeks preceding his termination, Mulally disciplined Staub for “insubordinate behavior.” Considering Mulally’s dislike of Staub, the allegations were questionable. Despite this, the Vice President of Human Resources terminated Staub.

At the trial court, Staub asserted the decision maker adopted Mulally’s animus and, therefore, the decision would not have been made if not for Mulally’s discriminatory animus. The jury returned a verdict favoring Staub and awarded him $57,640. On appeal, the Seventh Circuit reversed and remanded the decision and held the “cat’s paw” theory only attributes the discriminatory animus of the non-decision maker to the decision maker when the non-decision maker is the only influence on the decision-maker. The Seventh Circuit ruled that evidence of “singular influence” of the non-decision maker and “blind reliance” by the decision-maker is necessary in “cat’s paw” cases. The Seventh Circuit found clear evidence showed while Mulally did influence the decision-maker, the decision-maker also relied on other information including Staub’s reputation for being a difficult employee and his history of discipline prior to Mulally’s supervision. Furthermore, the Seventh Circuit found the trial court erred in allowing the case to proceed to trial because the trial court should have determined whether the non-decision maker was the singular influence on the decision maker before determining whether the non-decision maker held discriminatory animus. Staub’s attorney contested this decision on the basis that it fails to hold employers accountable when several factors lead to the adverse employment action, including discriminatory opinions from those the decision-maker consults before making the ultimate decision.

The Seventh Circuit essentially articulated a very narrow interpretation of the “cat’s paw” theory by requiring singular influence by the non-decision maker. We do not know how the Supreme Court will decide the case but some speculate that, given its ideological composition, the Supreme Court likely will affirm the Seventh Circuit opinion. Check back here for regular updates.