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Retaliatory Intent of Employees May Be Imputed to Employer in Title VII Retaliation Claim

The Second Circuit recently adopted the “cat’s paw” theory of liability for retaliation claims brought under Title VII, holding that “an employee’s retaliatory intent may be imputed to an employer where the employer’s own negligence gives effect to the employee’s retaliatory animus and cause the victim to suffer an adverse employment decision.” Vasquez v. Empress Ambulance Service, Inc., Docket No. 15-3239-cv (Calabresi, J. August 29, 2016)

The Plaintiff, Andrea Vasquez, was an EMT with the defendant, Empress Ambulance.  She was the recipient of unwelcome sexual advances from a co-worker, Tyrell Gray, which she immediately reported to Empress.  Empress undertook an investigation that consisted exclusively of evidence from Gray, which he had doctored to make it look like Vasquez was the aggressor.  Empress refused to consider any contradictory evidence offered by Vasquez and fired her for sexual harassment.  Vasquez brought suit against Empress and Gray, alleging she was wrongfully terminated in retaliation for filing a sexual harassment complaint in violation of Title VII and New York Human Rights Law.  The district court dismissed her claim, holding that the retaliatory intent of Gray, a low-level employee without any decision making authority, could not be imputed to Empress, and, therefore, Empress could not have engaged in retaliation based on his actions. The Second Circuit disagreed.

In order to establish a retaliation claim under Title VII, an employee must show the employer discriminated or took an adverse employment action against him/her because of his/her opposition to an unlawful employment practice.  The employee must also show a connection between the adverse employment action and his/her participation in a protected activity. The term “cat’s paw”, derived from an Aesop’s fable, refers to a theory of liability involving an employee who suffers an adverse employment action by a decision maker who does not have a discriminatory motivation but who has been “manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action.”

In Vasquez, the Second Circuit, in holding that the “cat’s paw” theory of liability can be used to support a claim of retaliation under Title VII, noted that it’s adoption of this theory is consistent with long standing precedent in the Circuit that “a Title VII plaintiff is entitled to succeed, even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias has played a meaningful role in the [decision-making] process.”

In addition to adopting the “cat’s paw” theory, the court held that, under agency principles, such liability could be imputed not only to supervisors, but to low ranking employees, where the employer’s negligence gives effect to the retaliatory intent of that employee. Here, the Second Circuit determined that Empress’ refusal to look at any evidence other than that provided by Gray was sufficient to allege negligence in conducting its investigation of Vasquez’s allegations.

The Circuit court emphasized that its ruling should not be interpreted to mean that an employer will be held liable simply because it acts on the information of a biased co-worker or because the employer was reached an incorrect conclusion regarding alleged employee misconduct, but “only when an employer in effect adopts an employee’s unlawful animus by acting negligently with respect to the information provided by the employee and therefore affords that biased employee an outsized role in its own employment decision, can the employee’s motivation be imputed to the employer an used to support a claim under Title VII.”

The take away is that employers should be aware of potential biases and motivations of supervisors and witnesses when considering employee discipline, particularly in discharge cases.  Any investigations should be thorough, fair and well-documented to reduce the potential for liability based on employer negligence for failure to recognize improper animus.