Split Panel of Sixth Circuit Holds that Cat’s Paw Theory Applies to FMLA Retaliation Claims
Last week in Marshall v. Rawlings, a split panel of the Sixth Circuit held that the cat’s paw theory of liability applies to FMLA retaliation claims. In Marshall, an employee was fired after using FMLA leave. The employee sued for FMLA retaliation, ADA discrimination, FMLA interference, and intentional infliction of emotional distress. The district court granted summary judgment to the employer, and the Sixth Circuit reversed the district court’s judgment as to the employee’s FMLA retaliation and ADA discrimination claims and affirmed the dismissal of the other two claims.
According to the majority, the cat’s paw theory recognizes that a biased lower-level supervisor, who lacks decisionmaking power, may influence an ultimate decisionmaker, resulting in a discriminatory employment action. Judge Moore, writing for the majority, said that the theory reflects that a decisionmaker may be “detached from day-to-day operations” and thus may “unthinkingly” accept the recommendations of his or her subordinates. When the cat’s paw theory is applied, an employer cannot shield itself from liability though the willful blindness of its ultimate decisionmakers. The court stated that when an ultimate decisionmaker takes an adverse employment action in-line with a biased lower-level supervisor’s recommendation, the employer may protect itself from liability by showing that the decisionmaker conducted his or her own independent investigation and determined that the adverse action was justified.
Judge Sutton dissented in part, writing that he would have affirmed the district court’s judgment based on the application of the honest-belief rule. Judge Sutton explained that the evidence showed that the two low-level supervisors involved in the decision process “honest[ly] belie[ved]” that the plaintiff had exhibited poor work performance and had made false allegations of harassment. Thus, these supervisors’ recommendations to the decisionmakers were not motivated by a discriminatory animus. Further, the two decisionmakers believed that the plaintiff had exhibited poor work performance and had made false harassment allegations. Thus, the decisionmakers demoted and fired the plaintiff for these reasons, which was all that was needed to overcome the plaintiff’s prima facie case. Judge Sutton also pointed out that the ultimate decisionmaker “was the one who thought of firing” the plaintiff and did so only after meeting with her to discuss her harassment allegations.