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Staub v. Proctor Hospital

2010-11 preview of the U.S. Supreme Court

560 F.3d 647 (7th Cir. 2009), cert. granted, 130 S. Ct. 2089 (April 19, 2010) (No. 09-400)

In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced, but did not make, the ultimate employment decision?

In a case of importance to employees covered by any federal employment discrimination law, Staub presents the questions of whether an employer can be held liable under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq., pursuant to the "cat's paw" theory, and if so, what standard of liability must be applied. In the opinion below, the Seventh Circuit described the origin of the cat's paw theory:

The term derives from the fable "The Monkey and the Cat" penned by Jean de La Fontaine (1621-1695). In the tale, a clever — and rather unscrupulous — monkey persuades an unsuspecting feline to snatch chestnuts from a fire. The cat burns her paw in the process while the monkey profits, gulping down the chestnuts one by one. As understood today, a cat's paw is a "tool" or "one used by another to accomplish his purposes." 

— Webster's Third New International Dictionary (1976)

Like all reservists, Vincent Staub was a part-time soldier, spending the bulk of his time in the civilian world. Balancing work and military duties can be a complicated task, but Staub managed to do so, for a while at least. In late 2000, some 10 years after he was hired as an angiography technologist by Proctor Hospital in Peoria, Ill., things began to slowly unravel. Around that time, Janice Mulally, the second-in-command of the Diagnostic Imaging Department where Staub worked, began preparing the department work schedules. Before she took over scheduling, Staub had weekends off. After Mulally took over, even though Staub notified her well in advance of his drill and training obligations — one weekend per month and two weeks during the summer — she nevertheless placed him back on the weekend rotation, creating conflicts with his drill schedule. When Staub approached Mulally about this problem, she became agitated and threw him out of her office, declaring that she "didn't want to deal with it."  Staub's appeals to the department head sometimes resulted in Mulally changing his schedule. On other occasions, however, Mulally would post a notice on the bulletin board stating that volunteers were needed to cover the drill weekends, portraying Staub as irresponsible. Occasionally, Mulally made him use his vacation time for drill days. Mulally made her reasons plain: She called Staub's military duties "bullshit." The department head manifested a similar attitude, calling Staub's drill weekends "Army Reserve bullshit" and "a bunch of smoking and joking and a waste of taxpayers' money."

In 2003, things got worse for Straub. Mulally told one of Staub's co-workers that his military duty had been a strain on the department and asked the co-worker "to help her to get rid of him." The co-worker refused. The department head told another of Staub's co-workers that Mulally was "out to get" Staub. In January 2004, after Staub received orders to prepare for a lengthy active duty deployment, Mulally gave Staub a written warning for shirking his duties, refusing to credit the explanation of Staub and a co-worker about a scheduling mix-up. He was ordered to report to the department head any time he intended to leave the general area of the department. Shortly thereafter, Mulally called the administrator of Staub's reserve unit to see if Staub could be excused from duty. When the administrator told her that Staub's presence was required, she called the administrator an "asshole" and hung up.

On the morning of April 20, 2004, Staub allegedly failed to comply with the prior warning requiring him to report to the department head before he left the department area; he was escorted to the office of Linda Buck, vice-president of Human Resources. Based on his record of unauthorized absences and multiple failures to comply with the warning issued by Mulally, Buck handed Staub his pink slip. Buck, who had no animus against Staub, relied on the reports of Mulally. Buck testified that but for those reports, she would not have fired Staub.

Staub sued Proctor Hospital under the USERRA. Staub alleged that the reasons given for his termination — insubordination, shirking and attitude problems — were a pretext for discrimination based on his association with the military. Based on the facts described above, a federal district court jury agreed with Staub and awarded him almost $58,000 in damages.

Proctor appealed and the Seventh Circuit reversed, defining the cat's paw theory as "where an employee without formal authority to materially alter the terms and conditions of a plaintiff's employment nonetheless uses her 'singular influence' over an employee who does have such power to harm the plaintiff for [discriminatory] reasons, the actions of the employee without formal authority are imputed to the employer …." Staub v. Proctor Hospital, 560 F.3d 647, 656 (7th Cir. 2009). The Seventh Circuit held that in a cat's paw case, before evidence of bias by a nondecisionmaker can be considered by the jury, the trial judge must first determine whether the evidence is sufficient for the jury to find "singular influence" based on the evidence to be presented at trial. "If there is not sufficient evidence to support such a determination, then the court has no business admitting evidence of animus by nondecisionmakers." Id. at 658. Since the lower court failed to follow this procedure, the Seventh Circuit concluded that "Staub's abundant evidence" of his supervisor's animosity was erroneously admitted into evidence — and considered by the jury. Id.

AARP's amicus brief filed with the Lawyers' Committee for Civil Rights Under Law (Lawyers' Committee) argues that the Seventh Circuit's strict "singular influence" standard is contrary to the plain language of USERRA and contravenes the prime purpose of Congress for enacting it: to encourage non-career service in the military by eliminating disadvantages of that service to civilian careers. The USERRA provides that the employer has violated the act "if the person's membership, application for membership, service, application for service or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken" absent those factors. 38 U.S.C. § 4311(c)(1). Thus, an employer can be held liable for the bias of a supervisor if the bias was a motivating factor for an adverse employment practice even when the ultimate decisionmaker harbored no discriminatory motive toward the affected employee. Well-established agency principles impute to an employer the actions of an employee committed within the scope of employment. Accordingly, an employer may be held liable for acts committed by biased supervisors if such actions result in an adverse employment practice against an employee in a protected class. The brief urges the court to reject the "singular influence" standard and to adopt the "causation" or "influence" standard used by a majority of federal circuits that have considered the issue.

Although the Staub case arose under the USERRA, the court's decision resolving the cat's paw question will be applied broadly to all federal employment discrimination laws, including Title VII of the Civil Rights Act of 1964 and the Americans With Disabilities Act. In keeping with AARP's long record of advocacy for the vigorous enforcement of the rights of older workers under these and other federal and state anti-discrimination laws, AARP filed its brief supporting Staub.

Although both the USERRA and Title VII contain language providing for liability when a protected trait is a "motivating factor" in the employer's decision being challenged by an adversely affected employee, the Supreme Court's decision last year in Gross v. FBL Financial Services Inc., 129 S. Ct. 2343 (2009), stripped the "motivating factor" standard from the Age Discrimination in Employment Act (ADEA). Since Congress is expected to pass — this year or next — a "Gross fix" bill that will restore the motivating factor standard to the ADEA, the court's decision in this case will ultimately apply to the ADEA. Additionally, the final section of the brief, arguing that the Seventh Circuit's "singular influence" standard would allow employers to insulate themselves from liability by conducting an internal investigation — whether robust or not — is directly relevant to the ADEA and ADA as well as ERISA and the FMLA. Rather, USERRA, like Title VII (and other federal anti-discrimination laws) requires actual nondiscrimination, not the mere creation of anti-discrimination policies.

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