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Second Circuit adopts Cat's Paw Liability in Title VII Employment Retaliation Case

Second Circuit - Cat's Paw Liability

The New York Law Journal reported that "The U.S. Court for the Second Circuit explicitly recognized so-called 'cat's paw' liability, where an employer can be held liable for being the negligent conduit of an employee's retaliatory intent."

The Second Circuit described "Plaintiff Andrea Vasquez, an emergency medical technician working for Empress Ambulance Service, Inc. ("Empress"), [who was] was subjected to unwanted sexual overtures by another Empress employee while on the job. Vasquez promptly complained of her co-worker's conduct and was assured by supervisors that her complaint would be investigated. That investigation, however, consisted of Empress crediting false documents manufactured by Vasquez's co-worker that purported to show Vasquez's eager assent to a sexual relationship and refusing to consider further contradictory evidence." Her lawsuit was dismissed by the Southern District of New York, Judge Buchwald), holding that "he retaliatory intent of Vasquez's co-worker, a low-level employee, could not be imputed to Empress and that Empress consequently could not have engaged in retaliation." The Second Circuit reverses the dismissal, adopting this Cat's Paw theory of liability.

The Second Circuit reviews the salient facts of this case:

In the space of twenty-four hours, Andrea Vasquez faced unwelcome sexual advances in the workplace, complained about that conduct to her employer, and lost her job. After receiving unsolicited sexual photographs from a co-worker one night shift, Vasquez promptly informed her supervisor and filed a formal complaint of sexual harassment, which her employer promised to investigate that same morning. Within a few hours, however, Vasquez's co-worker had discovered her complaint and had provided the employer with false documents purporting to show Vasquez's consent to and solicitation of a sexual relationship. In reliance on those documents, and notwithstanding Vasquez's offers to produce evidence in refutation, Vasquez's employer immediately fired her on the ground that she had engaged in sexual harassment.

The Plaintiff tried to bring her complaints of sexual harassment, unwelcomed photographs of a co-worker's phallus and manufactured complaints of Plaintiff being the sexual harasser. In a strange twist, the Plaintiff-victim was fired as the sexual harasser by her employer. "Vasquez subsequently brought suit against Empress under Title VII and NYSHRL, claiming that Empress had wrongfully terminated her in retaliation for complaining of sexual harassment. Empress moved to dismiss Vasquez's complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6) and the district court (Buchwald, J.) granted the motion."

Holding that "agency principles permit the retaliatory intent of Vasquez's co-worker to be imputed, as a result of Empress's alleged negligence, to Empress," the Second Circuit revives her lawsuit. "[A]n employer may be held liable for an employee's animus under a 'cat's paw' theory, regardless of the employee's role within the organization, if the employer's own negligence gives effect to the employee's animus and causes the victim to suffer an adverse employment action." The standard here

"for a retaliation claim to survive…a motion to dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated — or took an adverse employment action — against [her], (2) because [s]he has opposed any unlawful employment practice." Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (internal quotation marks omitted). Under the latter element, a *7 plaintiff must show a "retaliatory purpose" by "plausibly plead[ing] a connection between the [adverse] act and [the plaintiff's] engagement in protected activity." Id

What is cool about this case is the reference to the cat's paw. Cat's paw is defined as "A person used by another as a dupe or tool." Here Judge Calabresi said the phrase "cat's paw" was injected into American jurisprudence by Judge Richard Posner, and it derives from an Aesop fable wherein a "wily monkey flatters a naïve cat into pulling roasting chestnuts out of a roaring fire for their mutual satisfaction; the monkey, however, 'devour[s] ... them fast,' leaving the cat 'with a burnt paw and no chestnuts' for its trouble." The the "cat's paw" metaphor now "refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action," Cook v. IPC Intern. Corp., 673 F.3d 625, 628 (7th Cir. 2012) (Posner, J.). Because the supervisor, acting as agent of the employer, has permitted himself to be used "as the conduit of [the subordinate's] prejudice," Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990), that prejudice may then be imputed to the employer and used to hold the employer liable for employment discrimination.

Adopting the 7th Circuit's reasoning, the Second Circuit finds that

permitting "cat's paw" recovery in retaliation cases accords with longstanding precedent in our Court, in the employment-discrimination context, that "a Title VII plaintiff is entitled to succeed, 'even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the [decisionmaking] process.'" Holcomb v. Iona Coll., 521 F.3d 130, 143 (2d Cir. 2008) (quoting Bickerstaff v. Vassar Coll., 196 F. 3d 435, 450 (2d Cir. 1999)). Such a role is surely played by an employee who "manipulates" an employer into acting as mere "conduit" for his retaliatory intent.4 Accordingly, we now hold that the "cat's paw" theory may be used to support recovery for claims of retaliation in violation of Title VII.

While the Plaintiff's lawsuit is reinstated, the Court sets forth significant instruction to practitioners. Cat's Paw liability will not be a catch-all provision allowing liability to fall upon all employers who undertake efforts to eliminate and prevent discrimination and retaliation:

Thus, an employer who, non-negligently and in good faith, relies on a false and malign report of an employee who acted out of unlawful animus cannot, under this "cat's paw" theory, be held accountable for or said to have been "motivated" by the employee's animus. And, of course, an employer who negligently relies on a low-level employee's false accusations in making an employment decision will not be liable under Title VII unless those false accusations themselves were the product of discriminatory or retaliatory intent (although the employer may yet be liable for simple negligence under state law)....Only when an employer in effect adopts an employee's unlawful animus by acting negligently with respect to the information provided by the employee, and thereby affords that biased employee an outsize role in its own employment decision, can the employee's motivation be imputed to the employer and used to support a claim under Title VII.

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