In an old fable, a monkey convinces an unwitting cat to scoop out chestnuts from a burning fire. As the cat gathers the chestnuts one by one—and burns its paws in the process—the monkey, unbeknownst to the cat, eagerly gobbles them down. Borrowing from this story, courts have used the term “cat’s paw” to describe a situation in which a biased subordinate who lacks decision-making power uses a formal decision maker as an instrument to trigger a discriminatory employment action. When this happens, the employer can be held liable, even though the decision maker was unbiased.
In a new decision, the Ninth Circuit Court of Appeals, which covers California, explains this discrimination theory. We’ll look at the ruling and provide tips for steering clear of similar problems.
Complaining Employee Comes Under Investigation
The case involved James Poland, who worked for many years for the U.S. Customs Service, eventually as a supervisor in the agency’s Portland, Oregon, office. Problems began when Poland, then age 49, began reporting to Gary Hillberry, a special agent in charge who worked out of Denver. Hillberry told Poland he was too old for career advancement in the agency and that the officers in the Portland office were too old. Hillberry also told another agent that Poland had a bunch of “old farts” in the Portland office who needed to “get with the times.”
Poland eventually filed internal Equal Employment Opportunity (EEO) complaints accusing Hillberry of discrimination and retaliation. Then, Hillberry requested that the Customs Service make an administrative inquiry into Poland’s performance, contending that Poland was argumentative and disrespectful toward Denver agents. The agency opened a formal inquiry. Witnesses, who were identified by Hillberry and selected without consulting Poland, supported the charges against Poland. The investigatory panel concluded that Poland’s conduct was inappropriate, and the assistant customs commissioner reassigned him to a nonsupervisory position in Virginia.
Employer Challenges Claim
Poland sued under the federal Age Discrimination in Employment Act (ADEA), alleging that the administrative inquiry was initiated in retaliation for his EEO complaints. After the district court ruled in Poland’s favor, the Customs Service appealed, arguing that Poland didn’t prove a crucial element of his retaliation claim: that there was a link between the filing of his internal complaints and the adverse employment actions. The Customs Service pointed out that the transfer decision was made not by Hillberry but by the assistant commissioner following an independent inquiry.
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Investigation Was Tainted
Now the Ninth Circuit has affirmed the retaliation ruling in Poland’s favor.1 The court explained that in this type of situation—a biased subordinate employee precipitates an investigation that leads an unbiased employee to make an adverse employment decision—the court must consider how involved in the investigation the biased employee had to be for that bias to be imputed to the employer and ultimate decision maker.
The court rejected the Customs Service’s argument that an employer can be held responsible only when the retaliating employee dominates the investigation and the final decision is merely a perfunctory approval of his or her inclination. Instead, the court adopted a more expansive standard, ruling that if the investigation that led to an adverse action wouldn’t have happened but for the biased employee, the bias will be imputed to the employer if the aggrieved employee can show that the allegedly adverse independent decision wasn’t really independent, either because it was influenced by the biased employee or the biased employee was involved in the decision-making process.
The court went on to find that Hillberry initiated the investigation for retaliatory reasons, and the investigatory panel was influenced by Hillberry’s bias. For example, the panel considered a lengthy memo Hillberry wrote detailing Poland’s alleged misconduct, and it interviewed only witnesses Hillberry identified. Thus, the court concluded, the investigation wasn’t sufficiently independent to break the chain of causation between Hillberry’s bias and the decision to transfer Poland.
Tips for Employers
This decision illustrates how critical it is to ensure that an investigation into misconduct or performance problems involving an employee who has complained is absolutely thorough and independent. Human resources should consider information other than that supplied by the supervisor or other employee who has been implicated in the complaint. And, always ask the employee who is the subject of the investigation for his or her side of the story.
1 Poland v. Chertoff, U.S.C.A. 9th Cir. Nos. 05-35508, 05-35779, 2007