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Holding Employers Liable For the Discriminatory or Retaliatory Acts of Supervisors and Co-Workers – Cat’s Paw to the Rescue

Amir is an American born Muslim of Pakistani descent. Amir has recently obtained an entry level administrative position at ABC, Inc., a large pharmaceutical company.  Two white co-workers in Amir’s department, Billy and Bob, who similarly hold entry level positions at ABC, dislike Muslims.  As a result, Billy and Bob scheme to get Amir fired by falsely reporting to their department manager Tony having seen Amir stealing drug samples used by the company’s sales team.  Relying on what Billy and Bob reported to him, Tony decides to fire Amir. Thereafter, Amir retains an employment lawyer and files a wrongful discharge discrimination lawsuit against ABC. While the lawsuit is pending, Billy and Bob’s discriminatory scheme is uncovered. Will Amir and his attorneys be able to hold ABC liable for Manager Tony having fired Amir based on what Billy and Bob reported? Under the so-called “cat’s paw” theory of liability, the answer appears to be yes.

Our United States Supreme Court in a case entitled Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), held that “an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make the ultimate decision.”  Id. at 1187.  Prior to this ruling, lower federal courts had favorably applied the cat’s paw theory in discrimination cases. Abramson v. William Paterson College, 260 F.3d 265, 286 (3d Cir. 2001) (“it is sufficient if those exhibiting discriminatory animus influenced or participated in the decision to terminate.); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000) (“If the employee can demonstrate that others had influence or leverage over the official decision maker . . . it is proper to impute their discriminatory attitudes to the formal decision maker.”); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000) (stating that “discriminatory comments . . . made by . . . those in a position to influence the decision maker” can be evidence of pretext); Griffin v. Washington Convention Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998) (“Evidence of a subordinate’s bias is relevant where the ultimate decision maker is not insulated from the subordinate’s influence”). Similarly, the New Jersey Appellate Division adopted the cat’s paw theory from Staub and applied it under New Jersey’s whistleblowing law known as the Conscientious Employee Protection Act, or CEPA. Battaglia v. United Parcel Service, 2011 N.J. Super. Unpub LEXIS 2180 at * 29 (App. Div. Aug. 12, 2011); see also Lowe v. Medco Health Solutions of Willingboro, LLC, 2012 U.S. Dist LEXIS 59137 at *48-49 (D.N.J. Apr. 27, 2012) (“it appears likely that New Jersey will adopt a standard similar to the “cat’s paw’ theory enunciated in Staub”).

In Burlington v. News Corp., 55 F. Supp. 3d 723 (E.D. Pa. 2014), the United States District Court for the Eastern District of Pennsylvania concluded the “cat’s paw” theory of imputed causation in discrimination cases should be extended to situations where the discriminatory animus influencing the decision-maker stemmed from a nonsupervisory employee. Id. at 738; see also Harris v. Warrick Cnty. Sheriff’s Dep’t., 666 F.3d 444, 448 (7th Cir. 2012) (noting that co-worker “cat’s paw” liability might have been available had the plaintiff established causation); Keefer v. Olin Corp., No. 09-cv-23-WDS, 2011 WL 4474966, at *3 (S.D. Ill. Sept. 26, 2011) (“Plaintiff has to show that there is supportable evidence that the unidentified ‘nurse’ somehow actually influenced the decision maker . . . or that the nurse was in a supervisor capacity.”); Johnson v. Koppers, Inc., No. 10 C 3404, 2012 WL 1906448, at *6-7 (N.D. Ill. May 25, 2012) (expressly extending the cat’s paw doctrine to co-workers).

If you, like Amir, have been victimized at work by the discriminatory or retaliatory scheming of supervisors and co-workers alike, you may have a viable legal claim and lawsuit.  At Mashel Law, we are well experienced in handling discrimination and retaliation based legal claims. We will aggressively seek to discover the evidence required to get your claim to a jury. If you believe you have been the victim of unlawful discrimination or retaliation in the workplace, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. We at Mashel Law, located in Marlboro, New Jersey, are dedicated to protecting the rights of employees.