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Employment Law Blog

May 26th, 2017

Sixth Circuit Extends “Cat’s Paw” to FMLA Retaliation Cases

Blog by Folkerth Law

“Cat’s paw” refers to a situation where a subordinate supervisor (or in some instances a coworker) lacking decision-making power dupes the decision-making manager into making an adverse employment decision, typically to terminate an employee.  In this situation, the employer is held liable for the discrimination or retaliation of the supervisor (or coworker) who does not hold any decision-making authority.  Cat’s paw liability is now recognized in many types of employment cases.  In 2011, the U.S. Supreme Court held that cat’s paw applies to cases involving the Uniformed Services Employment and Reemployment Rights Act (USERRA).  Staub v. Proctor Hosp., 562 U.S. 411.  Since Staub, courts across the country have applied “cat’s paw” in a variety of other employment discrimination contexts.  Just last month, the Sixth Circuit Court of Appeals, covering Ohio, Kentucky, Michigan, and Tennessee extended “cat’s paw” liability to FMLA retaliation claims.  Marshall v. The Rawlings Co., 854 F.3d 368 (6th Cir. 2017).

Gloria Marshall began working for The Rawlings Company in 2006.  Marshall took FMLA leave in February and March 2012, and a second FMLA leave in March 2013, to receive treatment for mental-health issues.  During the following months, she took intermittent FMLA leave.  On September 23, 2013, Marshall’s supervisor, Matthew Monyhan, and her second-level supervisor, Mike Elsner, confronted her about her work performance.  When confronted by Monyhan and Elsner, Marshall responded that she had been harassed and bullied by Jeff Bradshaw, a vice president.  She said that she had not reported the harassment previously because she was afraid she would be fired.

Laura Plumely, the president of the division, and Elsner met with Marshall to discuss her allegations of harassment.  Plumley concluded that Marshall asserted the allegation of harassment to deflect attention from her job performance.  Plumley reported to George Rawlings, the company’s owner, about the allegations of harassment and her conclusion that the allegations were unfounded.  Rawlings (who stated he was unaware of Marshall’s leave and medical conditions) determined that Marshall made false allegations and decided to terminate her employment.

The Sixth Circuit held that cat’s paw applies equally to FMLA retaliation claims as to other types of employment discrimination and retaliation claims.  The Court observed that the primary rationale for cat’s paw is that because a company’s organizational chart does not always accurately reflect its decision-making process, an employee of lower rank may have significant influence over the decision-maker.  Marshall never alleged that Plumely or George Rawlings (the ultimate decision-maker) were biased against her because of her FMLA leave.  Rather, she alleged lower level supervisors were biased against her and influenced those with decision-making authority.  Plumely was between the lower supervisors and George Rawlings.  The Sixth Circuit held that cat’s paw applies to multiple layers of supervision between the employee and the decision-maker.

In most discrimination and retaliation cases, an employee cannot establish an unlawful motive simply by pointing to an incorrect decision of the employer if the employer honestly (albeit wrongly) believed it was correct.   Marshall, however, held that this “honest belief rule” does not apply to cat’s paw cases because the honest belief of the decision-maker is irrelevant to the motive of the lower-level supervisor.  Therefore, an employer’s decision-makers should not rely solely on the recommendations of a lower-level supervisor without conducting an independent investigation.

And finally, one may wonder how in the world a cat’s paw became associated with a type of employment discrimination.  The U.S. Supreme Court explained the origins of the term in a footnote.

“The term ‘cat’s paw’ derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679 . . .  In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire.  After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing.  A coda to the fable (relevant only marginally, if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on the king’s behalf and receive no reward.”

Staub v. Proctor Hosp., 562 U.S. 411, 415 (2011).  While the explanation may seem obscure, the cat’s paw theory has become increasingly important in establishing proof of unlawful discrimination.

Disclaimer: This blog has been prepared by attorneys employed by this firm and is provided for general information purposes only to permit you to learn more about our firm, our services and the experience of our attorneys. The information presented is not legal advice, may not be applicable or may be contrary to the laws of certain jurisdictions, is not to be acted upon as legal advice, may not be current, and is subject to change without notice.

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