Sixth Circuit Recognizes “Cat’s Paw” Theory Application in FMLA Retaliation Suit - American Society of Employers - Michael Burns

Sixth Circuit Recognizes “Cat’s Paw” Theory Application in FMLA Retaliation Suit

The intriguingly named “cat’s paw” theory of discrimination looks at whether an adverse employment action, in this case a retaliatory discharge, that was initiated by “ultimate decision makers” was in fact being influenced by lower level supervisors with discriminatory intent. This theory is relatively new but has been successfully used by plaintiffs in a broad range of other equal employment opportunity cases. The case at hand, Gloria Marshall v. The Rawlings Company LLC, is the first one in the Sixth Circuit (Michigan) that applies the theory to a Family and Medical Leave Act (FMLA) interference and intentional infliction of emotional distress claim.

In this case the employee (plaintiff) appealed the lower court judgement granting summary judgement in favor of The Rawlings Company (defendant). Ms. Marshall, the employee, had taken FMLA time off for mental health problems. She was subsequently demoted and then fired from her employment. She sued The Rawlings Company alleging FMLA interference, Americans with Disabilities (ADA) retaliation, and intentional infliction of emotional distress. 

Ms. Marshall was ultimately fired by the owner of The Rawlings Company based upon her attendance and reports of low productivity. In her complaint, Ms. Marshall did not allege the owner and another upper management employee were biased against her and in turn committed the discriminatory termination. Her allegation pointed the finger at two department managers who Marshall alleged influenced the owner. This is the “cat’s paw” theory of liability at work. Lower level influencers cause the wrongful employment action to be taken by managers above them. In this case, the lower level supervisors communicated to a third manager that the plaintiff had made an unfounded claim of harassment. The third manager in turn told the owner about the allegedly false harassment claim and the owner did the firing. To date the “cat’s paw” theory has been used in a USERRA (vets discrimination) lawsuit, gender discrimination, race discrimination, and age discrimination claims.

The Sixth Circuit Court of Appeals determined that there was just as much a possibility of lower level supervisors influencing decision makers in FMLA discrimination situations as they may do in discriminating based on race, gender, age, or military service.  Therefore, it made sense to allow application of the “cat’s paw” theory to FMLA. The Sixth Circuit also embraced the McDonnel Douglas burden shifting analysis and its application to proving or not, cat’s paw liability. The Court outlined this as:

The McDonnell Douglas burden-shifting framework applies to claims of FMLA retaliation based on indirect evidence. Under this framework, a plaintiff has the burden to make a prima facie case of discrimination; if the plaintiff can make a prima facie case, the defendant has the burden to articulate a nondiscriminatory reason for the adverse employment action; if the defendant can provide a nondiscriminatory reason, the plaintiff has the burden to show that the reason was pretext.

A plaintiff establishes pretext “by showing that the proffered reason had no basis in fact, did not motivate the termination, or was insufficient to warrant the termination.” Pg. 11 Marshal v. Rawlings Co.

The Sixth Circuit also looked at application of another rule called the “honest-belief test” that is used specifically in “cat’s paw” theory cases. This rule states as long as the employer (in this case the owner) has an honest belief in its proffered non-discriminatory reason for terminating the employee the employee cannot maintain the proffered reason was only pretextual. The court opined that this generally requires the decision maker to have conducted their own investigation of the reasons for the discharge to show that the adverse action was “apart from the supervisor’s recommendation [and] entirely justified.”

The Sixth Circuit Court of Appeals overturned the lower court’s decision for summary judgement on both FMLA and ADA discrimination complaints. The Court determined that there were sufficient disputes about the material facts surrounding the discharge.  The lower court could not have properly discerned the motivations and reasoning of the management team sufficiently to support a decision against the “cat’s paw” theory in these circumstances.

It did uphold the summary disposition finding no interference with the plaintiff’s leave and no cause on the intentional infliction of emotional distress claims.

 

Source: Gloria Marshall v. The Rawlings Company LLC, Sixth Circuit Court of Appeals No.16-5614 (4/20/2017)

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