Court Rejects Cat's Paw Theory, Vacates Jury Verdict
Jean La Fontaine was a 17th century French poet who penned a fable involving a monkey and a cat "in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. As the cat scoops the chestnuts from the fire one by one burning his paw in the process, the monkey eagerly gobbles them up, leaving none for the cat." At least that's what Wikipedia says. I had never heard of this fable until I started practicing law.
In the area of employment discrimination, the "cat's paw" theory of liability applies to a situation where an employee with discriminatory motives convinces an unwitting supervisor to take an adverse employment action against another employee. The supervisor's motives may be pure, but the employer can still be held liable because discrimination has tainted the decision-making process.
Two employees of Saks Fifth Avenue in Bal Harbour, Florida, Lana Perez and Elena Leffler, recently persuaded a federal jury that the company terminated their employment because of age discrimination. The jury awarded Perez $370,000 and Leffler $240,000. However, following the trial, U.S. District Judge K. Michael Moore granted Saks's motion for judgment as a matter of law, ruling that there was insufficient evidence of age discrimination to support the jury's verdict.
The case turned upon the cat's paw theory of liability. The company's Regional Director of Human Resources, Margaret Phelan, terminated the plaintiffs for allegedly giving unauthorized discounts to customers. The plaintiffs did not contend that Phelan harbored any age-discriminatory animus, but did contend that her decision was influenced by the discriminatory animus of Raymond Terbecki, plaintiffs' manager, and Gloria Salerno, the store's Director of Human Resources. The court found that a reasonable juror could have found that Terbecki (but not Salerno) had discriminatory motives. Nevertheless, the court found that the cat's paw theory failed because there was no evidence Terbecki participated in the investigation into the alleged discounting scheme:
Without having participated in the Asset Protection investigation and in the absence of any contact with Phelan, Terbecki could not have influenced Phelan's ultimate decision to terminate Plaintiffs or skewed the results of the Asset Protection investigation to influence Phelan's decision. There is no evidence in the record that Terbecki used any other means of influencing Phelan's decision to terminate Plaintiffs. Therefore, even though a reasonable juror could have concluded that Terbecki harbored age animus, no reasonable juror could have found that Terbecki influenced Phelan's decision such that Phelan became a mere conduit for Terbecki's discriminatory bias or retaliatory motives.
The court further held even assuming arguendo that Salerno had discriminatory motives, "there was insufficient evidence for a reasonable juror to conclude that Salerno influenced Phelan's decision to terminate Plaintiffs such that Phelan was a mere conduit for Salerno's age animus or retaliatory motives."
For employment law practitioners, the Perez case serves as a reminder that it is not enough for a plaintiff alleging employment discrimination to demonstrate that someone at the company had discriminatory motives; the plaintiff must demonstrate that the adverse employment action at issue was tainted by that discrimination. When the decisionmaking process is free from discrimination, the claim should, and probably will, fail.
