A supervisor’s apparent bias in the firing of her employee proved costly in a recent 8th U.S. Circuit Court of Appeals ruling which upheld a decision by the U.S. District Court for the Eastern District of Missouri, Eastern Division awarding $413,000 in damages and liquidated damages in an FMLA retaliation claim based on cat’s-paw liability. The case is Marez v. Saint-Gobain Containers, Inc., Nos. 11-2354, 11-2356, 8th Cir. (July 31, 2012).
Saint-Gobain, a glass manufacturer, fired production supervisor Kathleen Marez less than 48 hours after she gave notice about her intentions to take FMLA leave for her husband’s then upcoming surgery. But Marez did not rely solely in her testimony on the suspicious proximity of her job termination and leave notification to “establish a causal link” that persuaded the appellate court to deliver its affirmation of the district court’s ruling.
Marez presented evidence that her supervisor appeared to treat her inequitably with formal disciplines for infractions that her peers also had committed, but which had gone unpunished. She also demonstrated that Saint-Gobain “did not normally terminate production supervisors for the offenses listed in [her] termination letter.”
“An employee can prove pretext by showing the employer meted out more lenient treatment to similarly situated employees who were not in the protected class, or as here, did not engage in protected activity,” the circuit judges opined, citing Harvey vs. Anheuser-Busch, Inc., No. 93-3079, 8th Cir. (Oct. 17, 1994).
Avoiding Costly Bias
The “cat’s paw” legal theory famously became a hot-button issue for employers to address when the U.S. Supreme Court unanimously held in Staub v. Proctor Hospital, No. 09-400 (March 1, 2011) that an employer can be held liable for employment discrimination claims based upon the bias of a supervisor who influenced, but did not make the final employment decision.
For a general illustration, think of it this way. If Manager X influences Decision-maker Y into firing or demoting Employee Z, then Employee Z may have an actionable grievance that supports a claim of unlawful employment discrimination. To prove his allegation, Employee Z would need to provide evidence of a causal relationship between Decision-maker Y’s decision and Manager X’s animus and biased agenda that resulted in Employee Z’s job termination or demotion.
In rendering their opinions, courts now increasingly consider the cat’s paw theory in retaliation and discrimination lawsuits against employers. Because employees protected by the Family and Medical Leave Act often file these suits, companies should be vigilant in training and managing their supervisors so that any bias is removed from employment decisions related to employees who have taken or are scheduled to take FMLA leave.
‘Cat’s Paw’ Origins
To cite Julie M. Kovel in her paper, “The Supreme Court Writes a Fractured Fable of the Cat’s Paw Theory in Staub v. Proctor Hospital:”
“The term ‘cat’s paw’ originated in the fable ‘The Monkey and the Cat’ by Jean de La Fontaine. As told in the fable, the monkey wanted some chestnuts that were roasting in a fire. Unwilling to burn himself in the fire, the monkey convinced the cat to retrieve the chestnuts for him. As the cat carefully scooped the chestnuts from the fire with his paw, the monkey gobbled them up. By the time the serving wench caught the two thieves, no chestnuts were left for the unhappy cat.”
Since the 1600s, La Fontaine’s fable has served as a cautionary tale about the capacity of friends to use flattery as a means of manipulation. Be wary of employees who may be seeking to coerce an adverse employment action for their own gain or benefit.