In our blog article posted on August 3, 2016, we discussed the growing trend of court jurisdictions throughout the country adopting the cat’s paw causation theory to conclude that employers can be held liable for the discriminatory or retaliatory acts of supervisors and subordinate co-workers. To remind, under the cat’s paw theory of legal causation, also known as the “subordinate bias” theory, an employer may be held legally responsible to a complainant/plaintiff for employment discrimination or unlawful workplace retaliation based on the discriminatory or retaliatory animus of an employee who influenced the decision-maker (typically a managerial level employee), but who him or herself, did not make the employment decision adversely impacting the complainant/plaintiff. Recently, a federal court sitting in the Second Circuit’s Southern District of New York adopted the cat’s paw theory in a sexual harassment case entitled Vasquez v. Empress Ambulance Service, Inc., (decided August 26, 2016).
The facts in Vasquez explain why the court there felt constrained to rule in the employer’s favor. Andrea Vasquez worked on an ambulance crew for Empress Ambulance as an emergency medical technician. A male dispatcher named Gray worked for Empress as a dispatcher. After Gray met Vasquez, he began to pursue a romantic or sexual relationship by asking her out on dates, putting his arm around her and touching her shoulders. Vasquez made clear to Gray that she was not interested in such a relationship with him and tried to ignore him. Not wanting to take no as an answer, Gray thought he could woo Vasquez by texting her a picture of his erect penis with the message “Wat u think” (sic). Vasquez was disgusted by Gray’s text and informed her supervisor about the unwanted text message. The supervisor instructed Vasquez to type up a complaint and send it to Empress’ human resources department and her supervisors. Meanwhile, having caught wind of Vasquez’s complaints about him and fearing the loss of his job, Gray began to create the false impression that he and Vasquez were involved in an intimate personal relationship. Deceitfully, Gray was able to manipulate his iPhone so that the record of a conversation with someone else containing consensual sexual text banter appeared to have taken place between Gray and Vasquez. Gray gave printed screen shot portions of such text conversation to Empress Management. Gray was also able to contrive a racy photograph of a woman he purported was Vasquez claiming she sent it to him in response to his erect penis photo. Gray’s effort to mislead Empress proved successful as Vasquez was fired by Empress based on the Empress Management Committee’s misapprehension that she had communicated a false sexual harassment claim against Gray.
Following her termination, Vasquez filed a sexual harassment discrimination and retaliation claims against Empress under federal Title VII and the New York State Human Rights Law. Empress moved to dismiss Vasquez’s complaint arguing, in part, that a cat’s paw claim is only viable when the biased person who influences the adverse employment discrimination is the plaintiff’s supervisor, and not like Gray, a mere co-worker. In rejecting Empress’ argument, the court stated that a subordinate’s biased recommendation to a decision-maker supports a cat paw’s theory of liability when the biased person acts within the scope of his or her employment, or when the biased subordinate acts as the employer’s agent although not formally delegated the authority to do so. Under either of these possibilities, the biased person by virtue of their position or relationship with the decision-maker(s) must occupy a position of confidence sufficient to corrupt the decision making process. Applying these principles, the court concluded that Gray’s manipulative conduct fell outside the scope of his employment, Gray was not delegated authority to act for the company, and no evidence was presented showing Gray occupied a position of confidence in the eyes of the employer sufficient to corrupt the decision to terminate Vasquez’s employment. Because the court found an insufficient basis to impute Gray’s retaliatory intent to Empress, it dismissed the claims brought against Empress.