Cat’s Paw Making New Tracks: Second Circuit Extends Cat’s Paw Principle to Retaliation Claims and to Low-Level Employees

3 minute read | September.23.2016

The “cat’s paw” doctrine, a concept first coined by Seventh Circuit Judge Richard Posner in 1990 and adopted by the Supreme Court in 2011, applies when an employee is subjected to an adverse employment action by a decision maker who does not have any discriminatory animus but who bases his or her decision upon information from another who has such an improper motive.  In Vasquez v. Empress Ambulance Service, Inc., the Second Circuit recently held that the “cat’s paw” theory may be used to support recovery for Title VII retaliation, in addition to discrimination, claims and then extended the doctrine to permit liability if the individual with the discriminatory or retaliatory motive is a low-level employee, not just a supervisor.

In Vasquez, a female emergency room technician made an internal complaint of sexual harassment when her male co-worker sent a text message with an inappropriate photograph to her phone.  Vasquez raised her complaint immediately upon returning to the office at the conclusion of her shift after midnight.  When she met with management later that morning, the owner of the company indicated that her male co-worker had iPhone screen shots purporting to show that Vasquez was a consensual participant, and even the aggressor, in sexually charged text messaging with him.  The employer never viewed the text message chain on Vasquez’s phone.  Vasquez was then fired for sexual harassment, despite her disputing the authenticity of photograph and text messages provided by her male co-worker.

The Second Circuit held that an employer can be liable under Title VII if the employer negligently relied on false evidence provided by an employee and the false evidence relied upon was the product of discriminatory or retaliatory intent.  Viewing the facts in the light most favorable to Vasquez, the court concluded that Vasquez sufficiently pled that the employer was negligent in its treatment of Vasquez’s complaint and the information provided by the male co-worker she had accused of harassment.  The Second Circuit found that by ignoring warning signs as to the evidence presented by the alleged harasser (including that he happened to have this evidence the same morning that he was accused of harassment and after learning he had been accused by Vasquez), refusing to inspect Vasquez’s phone, and refusing to consider any other evidence proffered by Vasquez to refute his allegations, Vasquez plausibly alleged negligence by the employer such that her claim for retaliation could proceed.

The court made clear, however, that “simply because [an employer] acts on information provided by a biased co-worker” does not automatically make the employer liable under Title VII.  The court explained, “an employer can still ‘just get it wrong’ without incurring liability under Title VII, but it cannot ‘get it wrong’ without recourse if in doing so it negligently allows itself to be used a conduit for even a low-level employee’s discriminatory or retaliatory prejudice.”

The moral of this “cat’s paw” story is that employers should take care to ensure that a full and fair investigation is conducted when complaints of harassment or other employee misconduct are made.