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U.S. Supreme Court endorses ‘cat’s paw’ theory of liability in employment cases
By Andrew M. Moskowitz and Carly Skarbnik Meredith
(New Jersey Law Journal, Vol. 204 – No 10, June 6, 2011)
In Staub v. Proctor Hospital, 131 S. Ct. 1186 (March 1, 2011), the United States Supreme Court addressed when an employer may be held liable due to “the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.” The majority opinion, issued by Justice Scalia, endorsed the “cat’s paw” theory of liability. Although Staub did not involve a Title VII claim, the case’s holding will almost certainly be applied to claims brought under Title VII. The Court’s holding in Staub could also potentially be applied to claims asserted under New Jersey state law.
The cat’s paw theory gets its name from a 17th century fable written by Jean de la Fontaine. In the story, a monkey persuades a cat to pull chestnuts out of a fire. In the process, the cat gets burned while the monkey gobbles up the chestnuts. Today the term cat’s paw means “one used by another to accomplish his purposes.”
In the workplace context, an employer (the cat) may be held liable for discrimination even if the actual decision to terminate was made with no unlawful animus on the part of the firing agent. Specifically, when a supervisor with a discriminatory animus (the monkey) performs an act which is a causal factor in the adverse employment action, the employer is responsible.
In Staub, the statute at issue was the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et. seq. As noted by Justice Scalia, “[t]he statute is very similar to Title VII,” as both statutes prohibit adverse employment actions where discrimination was a motivating factor. Under USERRA “[a]n employer shall be considered to have engaged in actions prohibited [by USERRA] . . . if the person’s membership in the uniformed services is a motivating factor in the employer’s action.” 38 U.S.C. § 4311(c). In the same vein, Title VII prohibits employment actions where an employee’s “race, color, religion, sex, or national origin” was a motivating factor. 42 U.S.C. §§ 2000e–2(a) and (m).
Vincent Staub was employed as an angiography technician for Proctor Hospital. Throughout his employment, Staub was a member of the United States Army Reserves. Evidence presented at trial demonstrated that Staub’s supervisor, Janice Mulally and Mulally’s supervisor, Michael Korenchuk, were hostile to Staub’s military obligations.
Mulally regularly scheduled Staub for shifts when she knew he had Reserve commitments. She also made several disparaging comments about his military duties and asked one of Mr. Staub’s co-workers to help her “get rid of him.” In January 2004, Mulally issued a “corrective action” disciplinary warning to Staub. Four months later, Korenchuk informed Linda Buck, Proctor Hospital’s vice president of human resources, that Staub had violated the corrective action. In reliance on Korenchuk’s accusation, and after reviewing Staub’s personnel file, Buck made the decision to terminate Staub’s employment.
Staub sued Proctor Hospital and alleged that his membership in the Reserves was a motivating factor in the decision to terminate his employment. At trial, the jury found that the decision to terminate him was motivated by discriminatory animus.
The Seventh Circuit reversed. See Staub v. Proctor Hosp., 560 F.3d 647 (7th Cir. 2009). In so holding, the court determined that, for a cat’s paw case to succeed, the discriminatory animus of a nondecision maker had to have a “singular influence” over the decision maker. Inasmuch as Buck had considered Staub’s personnel file, she did not merely rely on the representations of Mulally and Korenchuk. Thus, the Seventh Circuit held that, because the decision maker’s determination was not wholly dependent on the representations of the nondecision maker, Proctor Hospital was entitled to judgment as a matter of law.
The Supreme Court reversed. In its opinion, the majority held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” Therefore, the Court found that, because Buck had relied on both the corrective action and the statement by Korenchuk, discrimination could have been a causal factor in the decision to terminate Staub. In its analysis, the Court focused on construing the statutory phrase “motivating factor in the employer’s decision.” The Court found that when a “decision to fire is made with no unlawful animus on the part of the firing agent, but partly on the basis of a report prompted (unbeknownst to that agent) by discrimination,” discrimination could be considered a “causal factor” in the decision to terminate the employee.
Proctor Hospital had argued that a decision maker’s independent judgment or, alternatively, a decision maker’s independent investigation and rejection of allegations of discriminatory animus should immunize the employer from liability. However, the Court rejected those arguments. Specifically, the Court declined to adopt “such a hard-and-fast rule,” and noted that it was “aware of no principle in tort or agency law under which an employer’s mere conduct of an independent investigation has a claim-preclusive effect.”
The Court further noted that multiple individuals usually have the authority to reward or punish an employee and, as such, the ultimate decision maker relies on the representations of those other individuals. The Court held that the biased report still may remain a causal factor “if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.”
As noted above, although USERRA was the statute at issue, due to the two statutes’ similarities, the Staub holding will almost certainly be applied to claims brought under Title VII. Both statutes require only that plaintiffs demonstrate that discrimination was a “motivating factor” in the adverse employment action.
The Staub holding could also impact courts’ analyses of New Jersey employment statutes. Although, prior to Staub, the Third Circuit had endorsed the cat’s paw theory of liability in a LAD case (see Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 200 & n.11 (3d Cir. 1996)), research has disclosed only one unpublished New Jersey case addressing the issue of the cat’s paw or “subordinate bias.” See Kwiatkowski v. Merrill Lynch, Docket No. A-2270-06T1 (App. Div. Aug. 13, 2008).
Staub is clearly a significant case. Employers will have a far more difficult time arguing that, due to the absence of a bias on the part of the ultimate decision maker, they cannot be held liable. Rather, the issue will be whether the biased supervisor’s discriminatory actions proximately caused the adverse employment action. Because this analysis is inherently fact-specific, the result could be that fewer employment cases will be dismissed at the summary judgment stage of the litigation.
Partners Neil Deutsch and Bruce Atkins both recognized as Super Lawyers, Partner Andrew Moskowitz and two associates named to magazine’s list of Rising Stars in New Jersey
Hackensack, N.J. (Martindale-Hubbell® Newswire / PRWEB) March 18, 2010 — Three partners and two associates from the Hackensack, N.J.-based law firm Deutsch Atkins, P.C. have been recognized by New Jersey Super Lawyers magazine.
The firm’s two founding partners, Neil Deutsch and Bruce Atkins, were both selected as Super Lawyers for 2010. Atkins, a highly experienced employment litigator who has been practicing law since 1977, was recognized by New Jersey Super Lawyers for the sixth consecutive year. Deutsch, who has more than 30 years of experience as an attorney in both private and corporate practice, was recognized for the fifth year out of the past six. Only five percent of the lawyers in any state are selected by Super Lawyers.
The firm’s third partner, Andrew Moskowitz, was named a “Rising Star” by New Jersey Super Lawyers. This designation is limited to no more than 2.5% of the attorneys in the state of New Jersey.
“We’re honored to have five of our attorneys selected to New Jersey Super Lawyers because it recognizes the high-quality legal service we provide to our clients at Deutsch Atkins,” said Atkins. “Our law firm has developed an excellent reputation for obtaining solutions to employment law problems such as discrimination and harassment, particularly those of senior managers and corporate officers. As these honors illustrate, we are respected by the members of the bar and the judiciary for our knowledge, expertise, and commitment to our clients.”
The selection process for New Jersey Super Lawyers magazine is conducted by the research team at Super Lawyers, which is a service of the Thomson Reuters Legal division based in Eagan, Minn. Each year, Super Lawyers undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area, and a good-standing and disciplinary check.
Deutsch Atkins, P.C., is a highly regarded, AV-rated New York and New Jersey employee rights law firm. The firm’s size enables the attorneys of Deutsch Atkins to successfully bring claims against well-financed employers and the large law firms they select for defense representation while providing highly personal service to clients. Particular areas of expertise include handling age discrimination and gender discrimination lawsuits against employers. For more information, please go to or call toll-free .
October 2007: Deutsch Atkins is delighted to announce that Andrew Moskowitz, Esq., has become a partner with our firm. Andrew has been associated with Deutsch Atkins since 2006 and has been practicing law since 1997. He is a graduate of Duke University and attended the Fordham University School of Law, where he graduated in the top 25% of his class. He was recently selected as one of New Jersey’s Rising Stars in Employment Litigation, a distinction reserved for attorneys aged 40 or younger who have been in practice for 10 years or less. Only 2.5% of New Jersey attorneys are named Rising Stars. He is also a member of the New Jersey State Bar Association, the Association of Trial Lawyers of America-New Jersey, the New York State Trial Lawyers Association, and the National Employment Lawyers Association.
Andrew has litigated at the trial court and appellate court levels and has a number of reported decisions, including USA v. $734, 578.82, 286 F.3d 641 (3d Cir. 2002); Windsor Mt. Joy Mut. Ins. Co. v. Johnson, 264 F. Supp. 2d 158 (D.N.J. 2003); Shmueli v. N.Y. City Police Dept., 295 A.D. 2d 271,743 N.Y.S. 2d 871 (1st Dept. 2002); Dedes v. Cambria, 258 A.D. 2d 495, 684 N.Y.S. 2d 622 (2d Dept. 1999). He is admitted in New Jersey and New York.
October 2007: Deutsch Atkins, P.C. is proud to announce that our senior associate, Lisa Curry, Esq. has been named a member of the Executive Board of NELA-NJ, the New Jersey affiliate of the National Employment Lawyers Association (“NELA”).
NELA is perfectly in step with Deutsch Atkins’ practice focus on representing individuals in employment-related matters, which is why we are so pleased at Lisa’s seat on the Board. NELA is an organization serving attorneys who solely or primarily represent individuals – “plaintiffs” – in employment-related matters. NELA provides unique opportunities such as educational programs, networking, and legislative efforts for plaintiff’s lawyers, many of whom work in small firms. It affords them to share resources and join forces to help shape the law in New Jersey and to continue to protect the rights of New Jersey workers.
About Neil H. Deutsch has been practicing law for over 35 years and is known as a skilled negotiator in employment and discrimination law. He believes in a bottom-line approach of risk analysis and cost effectiveness for his clients. "Case evaluation is something we take seriously," says Mr. Deutsch who seeks top net dollar for…
About Bruce L. Atkins is regarded as one of New Jersey's premiere practitioners of employment and civil litigation. Mr. Atkins has also been included in the Thomson Reuters list of New Jersey Super Lawyers* in Employment Litigation since 2005. Mr. Atkins believes employees have rights that should be aggressively pursued when an employer has wrongfully dealt…
About Adam J. Kleinfeldt joined Deutsch Atkins, P.C. in March of 2015. He primarily represents individuals in employment litigations such as discrimination, retaliation, and whistle blowing matters. He has extensive experience in all phases of the litigation process. Adam has obtained significant results for some of his clients, including a $525,000 jury verdict in a…
About Diane Englander Peyser joined Deutsch Atkins, PC in September 2018 where she represents employees in wrongful termination, retaliation, harassment, and discrimination matters. Prior to joining Deutsch Atkins, PC, Diane represented clients in all aspects of employment law on behalf of employees involving unemployment appeals, claims of sexual harassment, LGBT discrimination, disability discrimination, FMLA, New…
About Debra M. McGarvey joined Deutsch Atkins, P.C. in December 2019. She has extensive experience defending employees and employers in state and federal court in employment litigation matters. She has represented clients on various issues arising out of the New Jersey Law Against Discrimination (NJLAD), the New Jersey Conscientious Employee Protection Act (CEPA), the Americans…