Second Circuit Extends Reach of Cat’s Paw: Vasquez v. Empress Ambulance Service
In employment litigation, plaintiffs often rely on the “cat’s paw” doctrine to hold their employers liable for discriminatory or retaliatory animus of a supervisory employee who influenced, but did not make, the ultimate employment decision. On August 29, 2016, the United States Court of Appeals for the Second Circuit, in Vasquez v. Empress Ambulance Service, Inc., greatly extended the reach of the “cat’s paw,” holding that the doctrine could be applied to hold an employer liable for an adverse employment decision that was influenced by the discriminatory or retaliatory animus of a low-level, non-supervisory co-worker.
The plaintiff, an emergency medical technician employed by the defendant, was terminated within hours of complaining to her supervisors that a male co-worker had sent her a text message containing a graphic, sexual photograph. Plaintiff alleged that when her male co-worker learned that she had complained, he manipulated his iPhone to make it appear that a conversation containing consensual sexual text banter that he had with another person was a conversation between him and plaintiff and, when questioned by the employer about plaintiff’s allegations, provided printed screen shots of portions of this alleged conversation, telling the employer that he and the plaintiff had been involved in a consensual relationship. In her lawsuit, plaintiff complained that her employer accepted the co-worker’s tale as true, and rejected her offer to turn over her cell phone for inspection or otherwise refute his claim. Instead, plaintiff asserted that she was told by her employer that it “kn[e]w the truth,” that she had a sexual relationship with the co-worker, and that her employment was being terminated because she had sexually harassed him. Plaintiff filed suit, asserting that the employer’s decision to terminate her employment was an act of retaliation in violation of Title VII because she had voiced complaints of sexual harassment. Relying on the “cat’s paw” doctrine, the plaintiff argued that the employer’s decision to terminate her employment was influenced by false information provided by her male co-worker. The district court dismissed her complaint, concluding that an employer could not be held liable under the “cat’s paw” doctrine for the discriminatory or retaliatory intent of a non-supervisory co-worker.
On appeal, the Second Circuit disagreed and reinstated plaintiff’s Complaint. Despite the fact that the male co-worker was a low-level employee without any supervisor authority, the Second Circuit held that the employer’s “own negligence provides an independent basis” to treat the male co-worker as its agent and hold it accountable for his illegitimate intent. Referencing the allegations that the employer “blindly credited” the male co-worker’s assertions and “obstinately refus[ed] to inspect [plaintiff]’s phone or to review any other evidence proffered by [plaintiff] in refutation,” the Second Circuit concluded that “an employer may be held liable for an employee’s animus under a ‘cat’s paw’ theory, regardless of the employee’s role within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim to suffer an adverse employment action.”
The impact of this decision on retail employers who are often called upon to make employment decisions based on information provided by one employee about another? Negligence is the key. Only when the retail employer effectively adopts the co-worker’s animus by acting negligently with regards to the information provided may the co-worker’s improper motivation be imputed to the employer to support a claim under the cat’s paw doctrine. Exercise good faith and be thorough in conducting internal investigations. Do not ignore warning signs. Consider all evidence offered in making employment decisions.