An old fable tells the story of a cat and a monkey. The monkey convinces the cat to fetch some chestnuts from the embers of a recently extinguished fire. The cat gets the nuts and gives them to the monkey, burning its paw in the process. A maid interrupts their activity, resulting in the cat getting nothing but a burned paw for its troubles. This fable is the origin of a phrase – “cat’s paw” – that means being the tool of another person. In employment law, the “cat’s paw” theory of liability is something that can hold an employer liable even when the employer has been duped by one of its supervisory or managerial employees.
A recent Sixth Circuit Court of Appeals case addressed the question of whether the “cat’s paw” theory of liability can apply in a Family and Medical Leave Act retaliation case. The plaintiff was a woman who worked for a company that provided “cost containment” services for insurance companies. The employee had depression, anxiety, and PTSD issues. Due to a bout of acute mental health problems, the employee took an unplanned period of FMLA leave in early 2012. Sometime after this, the company demoted her from a team lead position to an analyst role.
According to the employee, one of her supervisors had harassed her. This supervisor was also the same person who had recommended the employee’s demotion. The employer investigated but concluded that the harassment claim was unfounded. A few months later, the employer terminated the woman, allegedly due to her lack of productivity on the job.
The employee sued, alleging both FMLA interference and FMLA retaliation. After the district court entered a summary judgment order siding with the employer and ending the case, the employee appealed. In that appeal, the Sixth Circuit concluded that the employee should have been able to go forward with pursuing her retaliation claim.
In her retaliation claim, the employee never argued that the ultimate decision-makers at the company, including the in-house attorney (who made the decision to demote the employee) and the company president (who made the decision to fire the employee), were biased against her. Instead, she argued that two lower-level supervisors were retaliating against her for exercising her FMLA rights and that these biased supervisors had influenced the decision-makers in their demotion and termination decisions.
The crux of the employee’s case was the “cat’s paw” theory of liability, since her retaliation claim could not survive if the “cat’s paw” theory did not apply to FMLA retaliation cases. The Sixth Circuit concluded that this technique for pursuing a claim of liability “applies equally to FMLA retaliation claims as to other types of employment discrimination and retaliation claims.”
The court explained that extending this theory of liability to these types of cases was necessary to achieve the objectives of the FMLA. The theory allows plaintiffs to pursue FMLA cases in situations in which ultimate decision-makers “unthinkingly adopt the recommendations of their biased lower-level supervisors.” Additionally, it also aids employees in cases in which an employer attempts to insulate its ultimate decision-makers through a plausible deniability system that creates “willful blindness” on the decision-makers’ parts.
This ruling highlights several important points. One is the importance of decision-makers ensuring that they have all of the relevant information before they terminate or otherwise discipline employees who have exercised their FMLA rights. Another is the importance of careful oversight of intermediate supervisory employees to ensure that they are not engaging in improper, biased conduct.
Whether you’re an employee who suffered from FMLA retaliation, or you are an employer accused of such misconduct, you need skilled counsel on your side. The diligent and knowledgeable Tennessee FMLA attorneys at Mays & Kerr have been, for many years, helping employers and employees pursue justice in their FMLA cases, and we can help you with your case.
To speak with one of our lawyers about your case, call 1-877-986-5529.
More blog posts:
Eleventh Circuit Ruling Clarifies the Correct FMLA Leave Date that Matters in Retaliation Cases, Atlanta Employment Attorneys Blog, May 4, 2017
Tennessee Employee’s Failure to Follow Employer’s Reporting Policies Dooms FMLA Interference Case, Atlanta Employment Attorneys Blog, April 20, 2017