A split panel of the Sixth Circuit Court of Appeals recently held that the “cat’s paw” theory of liability applies to FMLA retaliation claims. In prior opinions, the Sixth Circuit has assumed without deciding that the theory is available in FMLA retaliation cases. But Marshall v. The Rawlings Company, LLC now answers the question directly, and in a published decision.
So, what is the “cat’s paw” theory, and what does it mean for employers? This theory of liability involves biased subordinates, while not decisionmakers themselves, execute their scheme of discrimination or retaliation through an unknowing decisionmaker (e.g., rubber stamping the biased subordinates’ recommendation). Through the theory, an employer may be held liable for the animus of a supervisor even if that supervisor was not the ultimate decisionmaker.
The opinion also contains a couple of reminders about the “cat’s paw” theory for employers to keep in mind:
- Evidence of a biased recommendation is not always sufficient to establish the “cat’s paw” theory. If a supervisor conducts his or her own “in-depth and truly independent investigation” and makes an independent decision based on that investigation, the supervisor “is not being manipulated by biased lower-level supervisors.” Thus, the employer will not be held liable in that instance.
- If the decisionmaker has been manipulated by a biased subordinate, the “honest belief” of the higher-level decisionmaker is irrelevant, and the employer may still be held liable. But if the subordinate has an “honest belief” that justified the action against the employee, the “cat’s paw” theory does not apply at all, and the employer is off the hook. “Cat’s paw” only applies if the subordinate has an unlawful motive that the decisionmaker “signs off on,” so to speak.
Although Judge Sutton dissented on the issue of whether the “cat’s paw” theory permitted liability in the case, he did not conclude that “cat’s paw” was unavailable under the FMLA. Thus, despite the divided ruling, any question concerning whether the theory may apply under the FMLA has now been answered.
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