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Monday, December 31, 2012

How 17th century fable of a monkey and a cat is applied in employment discrimination lawsuit against UMDNJ

 

A Jury verdict for plaintiff was affirmed in employment discrimination lawsuit brought against UMDNJ based on “cat’s paw” liability, an idea conceived from a 17th century fable.
 
If a  supervisor terminates an employee for discriminatory reasons, the termination is unlawful. The terminated employee has a cause of action based on the supervisor's discriminatory animus.
However an employer's liability for discrimination was expanded in a US Supreme Court case Staub v. Proctor Hospital, No. 09-400 (March 1, 2011) which expansion has been taken up by more recent courts who rely upon the analogy of a 17th century fable. 
 
More recently, an employment discrimination plaintiff brought suit against UMDNJ, and the NJ Appellate Division on Sept. 10, 2012, in Ofori v. Univ. of Med & Dentistry, upheld the trial court’s decision for the Plaintiff. In its unpublished opinion, the court applied the cat’s paw theory of employer liability and it relied upon the US Supreme Court opinion in Staub.
 
The United States Supreme Court in Staub holds employers liable for discriminatory animus of a supervisor who is an employee of the employer but who is not the person directly responsible for making the decision to terminate an employee. In Staub, the US Supreme Court employed a concept written by a 17th-century poet Jean Defendant La Fontaine in the fable The Monkey and the Cat to apply a ‘cat's paw' theory of discrimination. 
 
The U.S. Supreme Court unanimously held in Staub v. Proctor Hospital, No. 09-400 (March 1, 2011) that an employer can be held liable for employment discrimination claims based upon the bias of another employee who is a  supervisor who influenced another  person who actually made the decision to terminate the employee, i.e. the plaintiff , but which employee did not make the final employment decision to terminate.
 
In the fable The Monkey and the Cat, a  monkey who wants to eat chestnuts that he sees roasting on a fire, but who himself does not want to get burned by pulling the chestnuts off of the hot coals , convinces an cat to pull chestnuts from the hot fire. The cat at coaching from the monkey scoops the chestnuts from the fire one by one and  burns his paw as he does so. The chestnuts go flying and the scheming monkey quickly eats all the chestnuts, leaving no chestnuts for the cat. The monkey puts the chain of events into effect by manipulating the cat, and the moneky gets what he wants, the chestnuts, without getting burned; while the unwitting cat suffers burned paws and gets no chestnuts.  Currently the term “cat’s paw” is being used in legal theory of discrimination law to refer to an employee (i.e. the cat)  who is used by another employee (the monkey)  to accomplish the other employee”s ( the monkey’s) purposes.
 
Since the US Supreme Court decided Staub, other federal courts, and now the State Court in New Jersey, Appellate Division, in deciding employment discrimination cases have applied the cat's paw theory of discrimination as a means of holding employers liable for the discriminatory animus of an employee who is a supervisor but who is not directly responsible for making the decisions to terminate another employee, an adverse employment decision. 
 
After the Supreme Court decided Staub, in McKenna v. City of Philadelphia, No. 09-3567 (3d Cir. Aug.17, 2011), the Third Circuit affirmed the district court’s jury award in favor of a fired Philadelphia police officer, who was Caucasian, who claimed he had been retaliated against for complaining to his supervisor about racially discriminatory treatment of minority officers. The City had argued that even if the supervisor’s conduct was retaliatory, the City did not incur liability for the discrimination and termination  because the termination decision was made by an independent Police Board of Inquiry (“PBI”) after a hearing. 
 
Third Circuit affirmed the district court’s verdict finding the PBI’s decision was not independent and was foreseeable and the the court cited, Staub v. Proctor Hospital, and applied cat’s paw theory of liability. The Third Circuit concluded that the jury could reasonably have decided that the supervisor’s retaliatory animus bore a direct and substantial relation to the termination, because the supervisor in McKenna had testified at the PBI hearing. 
 
On July 23, 2012, the  8th U.S. Circuit Court of Appeals upheld a decision by the U.S. District Court for the Eastern District of Missouri  awarding the plaintiff $413,000 in damages and liquidated damages in an Family Medical Leave Act case for her retaliation claim based on cat’s-paw employer liability. The case is Marez v. Saint-Gobain Containers, Inc., Nos. 11-2354, 11-2356, 8th Cir. (July 31, 2012).
 
On May 24,2012,  the Seventh Circuit U.S. Court of Appeals held that an employee who did not make the termination decision but who recommended termination, but may be held personally liable. Here the court applied the cat’s paw theory of liability to Section 1981 of the Civil Rights Act of 1866 under a cat's paw theory of liability. The case is Smith v. Bray, No. 1:09-cv-3615 (7th Cir., May 24, 2012). Section 1981 prohibits racial discrimination in the making, performance, and termination of contracts including at-will employment. Section 1981 has historically been used to pursue individual liability against those persons who made the decision to terminate. Since Smith v. Bray, race discrimination plaintiffs in the Seventh Circuit can bring claims under Section 1981 to sue human resource managers,  and other individuals who may not have been the actual person making the termination decision, but who influenced the decision maker.
 
In Chattman v. Toho Tenax America, Inc., No. 10-5306 (6th Cir. July 23, 2012) the Sixth Circuit applied the Supreme Court's decision in Staub v. Proctor Hospital,to reverse summary judgment in a racial discrimination discipline case .
 
 Recently on Sep. 10, 2012 the New Jersey State Court, Appellate Division,  applied the cat’s paw theory of liability to expand employer liability even further in its unpublished opinion in Ofori v. Univ. of Med & Dentistry. The opinion stated:
“Following trial, the jury returned a verdict in plaintiff's favor, awarding $135,000 for past lost wages, $250,000 for future lost wages, and $100,000 for emotional distress. During trial, the judge denied defendant's motions for a directed verdict at the close of plaintiff's evidence and at the close of trial. Following the jury's verdict, the trial judge denied motions for judgment notwithstanding the verdict (JNOV) and a new trial or remittitur. A fee award of $185,352 plus an enhancement of $64,173 was entered. UMDNJ has appealed.....At the conclusion of the trial, and again, following a jury question, the judge gave the following "cat's paw" instruction to the jury over defendant's objection:
 
Defendant, University of Medicine and Dentistry of New Jersey, may be liable for discrimination if you determine that a biased] subordinate employee influenced the final decision maker to trigger a discriminatory employment action.
The plaintiff can establish discrimination by demonstrating that an individual other than the ultimate decision maker influenced the termination decision based on discriminatory animus.
Subordinate bias comes into play when an allegedly biased subordinate accomplishes her discriminatory goals by misusing the authority granted to her by the employer. For example, the authority to monitor performance, report disciplinary infractions, and recommend employment actions.
The plaintiff at all times bears the ultimate burden of convincing you that it's more likely than not that the defendant engaged in intentional discrimination. . . . 
On appeal, defendant contends that the instruction was improper because there was no evidence that  McCallion bore any discriminatory animus toward plaintiff. However, for the reasons that we have stated in connection with our affirmance of the trial judge's determination to deny defendant's motions for JNOV and a new trial, we reject this argument. Viewing the evidence in a light most favorable to plaintiff, we find a sufficient factual predicate for the charge to warrant its use.
Defendant also argues that the charge as given did not conform to that required by the United States Supreme Court in Staub v. Proctor Hospital, ___ U.S. ___, 131 S. Ct. 1186, 179 L. Ed.2d 144 (2011), in that it did not include a proximate cause requirement.”
 
The New Jersey Appellate affirmed the trial court and relied heavily upon Staub and quoted from Staub
 
“The Court held that animus and responsibility for the adverse action can both be attributed to the earlier agent (here, Staub's supervisors) if the adverse action is the intended consequence of that agent's discriminatory conduct. So long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable under USERRA. And it is axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent's action (and hence the earlier agent's discriminatory animus) from being the proximate cause of the harm. Proximate cause requires only "some direct relation between the injury asserted and the injurious conduct alleged," and excludes only those "link[s] that are too remote, purely contingent, or indirect." Hemi Group, LLC v. City of New York, 559 U.S. 1, ___, 130 S. Ct. 983, [989], 175 L. Ed.2d 943, 951 (2010) (internal quotation marks omitted). We do not think that the ultimate decisionmaker's exercise of judgment automatically renders the link to the supervisor's bias "remote" or "purely contingent." The decisionmaker's exercise of judgment is also a proximate cause of the employment decision, but it is common for injuries to have multiple proximate causes. See Sosa v. Alvarez-Machain, 542 U.S. 692, 704, 124 S. Ct. 2739, [2750,] 159 L. Ed.2d 718[, 736] (2004). Nor can the ultimate decisionmaker's judgment be deemed a superseding cause of the harm. It can be thought "superseding" only if it is a "cause of independent origin that was not foreseeable." Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837, 116 S. Ct. 1813, [1818,] 135 L. Ed.2d 113[, 120-21] (1996) (internal quotation marks omitted).”

 

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