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The Whiff of the Cat’s Paw



By Chase Fisher

The 300 mile breakfast
The former employee was a probationary employee who is Hispanic and of Mexican ancestry.  He was an inspector for the New Mexico Environmental Department, inspecting food service providers, liquid waste systems and public swimming pools.  The inspector had a strained relationship with his district manager, complaining the district manager made light of racial slurs directed towards the inspector.  Further, the inspector did not help matters when he blew the whistle on one of his supervisors, causing the supervisor to be fired, and wrongly accusing his next supervisor of theft.

A few months down the line, the inspector’s entire district was being investigated due to numerous complaints.  In particular, the inspector was being investigated for a reimbursement request for a breakfast receipt 300 miles away from the hotel he allegedly stayed at the night before.  This information was allegedly provided by the district manager.  When asked to cooperate in the investigation, the inspector refused, although he did eventually repay the expense.

Ultimately, the Environmental Department fired the inspector citing several reasons, including dishonesty.  The inspector then sued on several grounds, including an attempt to hold the Environmental Department liable under the cat’s paw theory, arguing the district manager’s racial bias against him contributed to his discharge.

Avoiding the scratch
Typically, an employer is liable for adverse employment actions of its decisionmaking employees when those actions are motivated by an animus towards a protected category under Title VII, such as the inspector’s race and national origin in this case.  Conversely, it is generally difficult to hold employers liable when the employer is not aware of biased actions taken by lower level, non-decisionmaking supervisors.  However, the cat’s paw theory may extend the reach of liability to those lower level employees when their bias causes an adverse action to be taken against their victim.

Cat’s paw liability generally requires two elements: (1) intent by a non-decisionmaking supervisor to cause an adverse action to be taken against an employee, and (2) the non-decisionmaking supervisor proximately causing the adverse action.  In this case, it was quite possible the biased district manager sought to get the inspector fired.  However, the Environmental Department independently investigated and verified the allegations against the inspector, which the court found sufficient to protect the employer.  Thus, despite the fact the Environmental Department made the same findings reported to it regarding the inspector’s conduct, the chain of causation aspect of the “cat’s paw” theory was broken by the independent investigation.

Employers should note an independent investigation is not a per se defense to cat’s paw claims, although it definitely helps.  It is quite possible a non-decisionmaking supervisor’s bias can be indirectly communicated through something as simple as a coaching action in the employee’s personnel file.  However, this case provides hope that even if a biased report by a lower level, non-decisionmaking supervisor starts or contributes to a chain of events leading to discharge, cat’s paw liability can be cut off at the pass by a diligent and independent investigation.