Wednesday, April 21, 2010

Cat’s Paw - The Facts

Last Friday, after receiving last month an amicus brief from the Solicitor General recommending that the Court take the case, the Supreme Court took cert in a so-called cat’s paw case, Staub v. Proctor Hospital, Supreme Court No. 09-400. Presumably, this will be a decision of monumental importance to all employment law practitioners. A few years back, the Court had an opportunity in Hill v. Lockheed Martin Logistics Management, Inc., 543 U.S. 1132 (2005) (No. 03-1443) and later in BCI Coca-Cola Bottling Co. v. EEOC, 549 U.S. 1334 (2007) (No. 06-341) to shed some light on the circumstances in which an employer can be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision, but the petitions were withdrawn in both cases before any decision from the Court. This issue has roiled the lower courts for many years now. See, e.g., Ricci v. DeStefano, 129 S. Ct. 2658, 2688-89 (2009) (Alito, J. concurring) (“One standard is whether the subordinate "exerted influenc[e] over the titular decisionmaker." Russell v. McKinney Hosp. Venture, 235 F.3d 219, 227 (CA5 2000) …. another is whether the discriminatory input "caused the adverse employment action." See BCI Coca-Cola Bottling Co. of Los Angeles, [450 F.3d 476,] 487 [CA10 2006)] …. The least employee-friendly standard asks only whether "the actual decisionmaker" acted with discriminatory intent, see Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277, 291 (CA4 2004) (en banc).”)

So, we will be posting about this case over the next weeks and months, and I thought that it would help all of us if I set forth the facts. I went to the Solicitor General’s brief, and relied upon it, to cobble together the extended statement of the facts set forth below. Having said all this, the first issue that comes to my mind is that this may be, in terms of the statutory language before the Court, the ideal case from the plaintiff’s point of view. I say that because the statute at issue, USERRA, provides in § 4311(c)(1) that a “motivating factor” is the causation standard, not Gross “but-for” causation. The other issue that I noticed is, what I would characterize as a concession, the Solicitor General in her amicus brief stating that protected status or conduct is a “motivating factor” in an action when it plays a “substantial” role in bringing that action about. I assume that the lawyers debated long and hard whether they needed to add the adjective “substantial”, and for strategic reasons decided to add it. I wonder if that will come back to haunt plaintiffs downstream. Now, for the statement of the facts.

Vince Staub, a member of the United States Army Reserve, was employed by Proctor Hospital as an angiography technologist. Janice Mulally, who was second in command of the department where Mr. Staub worked, was openly hostile to his reserve duties. For example, she "scheduled him for additional shifts without notice," saying that the extra shifts were a way for him to "pay back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves.” The head of Mr. Staub’s department, Michael Korenchuk, was also critical of Mr. Staub's military weekend duty obligations, which he called "a b[u]nch of smoking and joking and [a] waste of taxpayers['] money." After Mr. Staub returned from active duty in early 2003, Mr. Korenchuk knew "that Mulally was 'out to get' [Mr. Staub]," but he did nothing to stop her.

In January 2004, Mr. Staub was ordered "to report for 'soldier readiness processing'" in anticipation of another call to active duty. Mr. Korenchuk was concerned about the expense of having to hire a temporary replacement for Mr. Staub. A few weeks later, Ms. Mulally gave a written warning to Mr. Staub for not being at his work area. According to Ms. Mulally, employees in Mr. Staub's unit were supposed to report to the diagnostic imaging services unit whenever they were not working with a patient in the angiography unit. Mr. Staub disputed that such a policy existed or that he had violated it, but Mr. Korenchuk signed Ms. Mulally's warning to Mr. Staub in order "to get her off of his back." Under the terms of the warning, Mr. Staub was required to report to Mr. Korenchuk or Ms. Mulally whenever he did not have any patients and whenever he needed to leave his work station.
In April 2004, Angie Day, a former co-worker of Mr. Staub's, met with Mr. Korenchuk; Vice President of Human Resources Linda Buck; and Chief Operating Officer R. Garrett McGowan to complain that Mr. Korenchuk had failed to address Ms. Day’s concerns that Mr. Staub was "abrupt" in dealings with her and that Mr. Staub would "absent himself from the department.” Mr. McGowan ordered Ms. Buck to create a plan to solve Mr. Staub's availability problems. Before Ms. Buck did that, however, Mr. Korenchuk reported to Ms. Buck on April 20, 2004, that he was unable to locate Mr. Staub and that Mr. Staub had failed to report in as instructed. Based on that report and a review of Mr. Staub's personnel file, Ms. Buck decided that Mr. Staub should be discharged.

At the time Mr. Korenchuk was unable to find Mr. Staub, Mr. Staub was in the cafeteria having lunch with one of his coworkers, Leslie Sweborg. When Mr. Staub returned from lunch, he told Mr. Korenchuk that he and Ms. Sweborg had looked for him earlier and had left him a voice mail regarding leaving for lunch. Mr. Korenchuk then escorted Mr. Staub to Ms. Buck's office, where he was given his termination notice. The notice stated that Mr. Staub was being discharged for failing to follow the terms of the January warning, which required him to inform Mr. Korenchuk or Ms. Mulally before leaving the general diagnostic area. The notice stated: "To date, [Mr. Staub] has ignored that directive." Similarly, Ms. Buck's documentation of her meeting with Mr. Korenchuk stated that her termination decision was "[b]ased on the disciplinary action done in January and the continuing problems." When Mr. Staub arrived in Ms. Buck's office, Ms. Buck did not ask him about the January warning or whether he had reported in as directed. Ms. Buck simply asked him to sign the termination notice, and a security guard immediately escorted Mr. Staub out of Ms. Buck's office.

Mr. Staub thereafter unsuccessfully challenged his termination through the hospital’s grievance process. Although Mr. Staub argued in his grievance that Ms. Mulally had fabricated the basis for the January warning, "Buck did not follow up with Mulally about this claim * * * and she did not investigate [Mr. Staub's] contention that Mulally was out to get him because he was in the Reserves." Ms. Buck's investigation consisted solely of discussing the January warning with another Human Resources employee who received information from Ms. Mulally and was present when the warning was given, but not when the alleged misconduct occurred.

Mr. Staub filed suit against the hospital in the United States District Court for the Central District of Illinois, alleging that his termination violated USERRA. With the parties' consent, the district court referred the case for a jury trial before a magistrate judge. As required by Brewer v. Board of Trustees of the University of Illinois, 479 F.3d 908, 917 (7th Cir.), cert. denied, 552 U.S. 825 (2007), the court instructed the jury that "[a]nimosity of a co-worker toward the [Mr. Staub] on the basis of [Mr. Staub's] military status as a motivating factor may not be attributed to [the hospital] unless that co-worker exercised such singular influence over the decision-maker that the co- worker was basically the real decision maker." The court also instructed that "[i]f the decision maker is not wholly dependent on a single source of information but instead conducts its own investigation into the facts * * * , [the hospital] is not liable for a non-decision maker's submission of misinformation or selectively chosen information or failure to provide relevant information to the decision maker."

The jury returned a special verdict in which it found that Mr. Staub "proved by a preponderance of the evidence that [his] military status was a motivating factor in [the hospital's] decision to discharge him" and that the hospital failed to prove that Mr. Staub "would have been discharged regardless of his military status." The jury awarded $57,640 in damages. The magistrate judge subsequently denied the hospital’s motion for judgment as a matter of law or for a new trial.

The court of appeals reversed. Staub v. Proctor Hospital, 560 F.3d 647 (7th Cir. 2009). The court began by stating that the case involved what it described as the "'cat's paw' theory" of liability, a term derived from a La Fontaine fable in which a monkey persuades an unwitting cat to pull chestnuts out of a hot fire. Under that theory, "the discriminatory animus of a nondecisionmaker is imputed to the decisionmaker where the former has singular influence over the latter and uses that influence to cause the ad verse employment action"-in other words, where the decisionmaker is the dupe, or cat's paw, of the employee with a discriminatory motive. The court emphasized that liability under the cat's paw theory requires "a blind reliance, the stuff of 'singular influence.'"

The court of appeals held that the jury instructions were "not technically wrong" because they told the jury that it could "only consider nondecisionmaker animosity in the case of singular influence, and even then that the employer is off the hook if the decisionmaker did her own investigation." But the court added that if there is insufficient evidence to support a finding of "singular influence," then the district court "has no business admitting evidence of animus by nondecisionmakers.” In this case, the court of appeals concluded, the magistrate judge had erred in admitting evidence of Ms. Mulally's animus-"the strongest proof of anti- military sentiment"-without first "making a threshold determination of whether a reasonable jury could find singular influence."

The court of appeals went on to hold that, based on the evidence presented at trial, the hospital was entitled to judgment as a matter of law. The court stated that Ms. Buck, who made the decision to fire Mr. Staub, was "free of any military-based animus," and "a reasonable jury could not find that Ms. Mulally (or anyone else) had singular influence over Buck." Instead, the court found, "Buck looked beyond what Mulally and Korenchuk had said" about Mr. Staub. Although her "investigation could have been more robust," the court continued, the decisionmaker need not "be a paragon of independence" so long as she "'is not wholly dependent on a single source of information' and conducts her 'own investigation into the facts relevant to the decision.'" (quoting Brewer, 479 F.3d at 918). The court therefore concluded that "a reason able jury could [not] have concluded that [Mr. Staub] was fired because he was a member of the military."

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