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The Long Reach of the Cat's Paw

Fired employees can sue for wrongful discrimination even if their employer's actual decision makers were neutral and without discriminatory intent. This may happen when decision makers rely on misinformation submitted by a supervisor or high-level manager with an illegal discriminatory bias or motive to get rid of the employee.

The Cat's Paw Causation Theory

Picture a cat playing with toys, swatting toy No. 1 and causing it to hit toy No. 2, etc. This recent theory in employment discrimination firing cases describes termination situations where a supervisor or co-worker harboring a bad animus influences the decision-maker.

The Facts-In the April 2004 1st Circuit U.S. Court of Appeals case of John R. Cariglia v.Hertz Equip. Rental Corp. and James Heard, the appeals court reversed an employer's summary judgment dismissal and found a cat's paw claim of discrimination under the following facts:

John Cariglia, the plaintiff, started working for Hertz Equipment Rental Corp. in 1980. In 1992, after three promotions, he became national equipment sales manager. When that position was eliminated, he was asked to be a branch manager of the Boston office.

Although Cariglia helped improve the profitability of that branch, and his direct supervisor gave him above-average evaluations, several witnesses testified that the supervisor maligned the plaintiff, who was over 60, because of his age. Comments allegedly included saying the plaintiff was "over the hill, not our kind and should not be here."

In 1996, a supervisor reportedly ordered an audit of the Boston branch and told the auditor to "keep digging" and to "find that we could try to get rid of the plaintiff."

The results of the audit were poor, with various allegations of missing documents and kickbacks, but the report did contain this exculpatory section in favor of Cariglia:

None of the others interviewed has proof that equipment is leaving the yard without rental contracts. No one interviewed was ever told to look the other way or offered money to look the other way to enable a piece of equipment to leave the yard. Concerning equipment that is rented by one company and returned by another, not one of the individuals could provide a concrete example of this activity. None of the people interviewed could provide any information that would substantiate suspicion that John Cariglia is taking kickbacks.

Hertz's management ordered a follow-up audit, according to the plaintiff, concentrating on an instance in which $25,000 had been allocated for painting equipment, but the work had not been done. The supervisor allegedly didn't tell senior management that he had instructed the plaintiff to expense the work by the end of the year, even though he knew the equipment would not be painted because it was customary for equipment to be painted only upon resale.

When the supervisor received the follow-up audit, he allegedly reported to senior management only that the equipment had not been painted and the money could not be accounted for.

The senior managers decided to fire Cariglia for "gross misconduct." The supervisors replaced him with a younger branch manager.

The Cat's Paw Issue

Is corporate employer liability triggered when neutral (termination) decision makers rely on false or misleading information that is manipulated by another employee or manager who is biased against the terminated employee?

Several U.S. Courts of Appeal have answered "Yes"-feeding false or inaccurate information to the non-discriminating decision maker is a cause of illegal employment discrimination.

  • 1st Circuit (covering federal law rights for the states of Maine, Massachusetts, New Hampshire and Rhode Island)
  • 3rd Circuit (Delaware, New Jersey, and Pennsylvania)
  • 5th Circuit (Louisiana,Mississippi and Texas)
  • 7th Circuit (Illinois, Indiana and Wisconsin)
  • 8th Circuit (Arkansas,Minnesota Missouri, Nebraska, North and South Dakota)
  • 9th Circuit (Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington and Hawaii)
  • D.C. Circuit (Washington, D.C.).

This cat's paw is obviously long and deceptively strong. Employers need to be aware of this fast-developing theory and re-examine employment termination procedures, especially in these tough economic times when long-term employees are being let go.

The Hertz case should remind employers that they cannot insulate themselves from employment discrimination claims by using an ostrich (head-in-the-sand) decision maker.

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