Ready for a modern-day fable? The 10^th Circuit Court of Appeals recently issued a pro employer decision in an FMLA retaliation case by analyzing one of our favorite legal principles, the "cat's paw" theory of liability.

In legal cases, the cat's paw theory holds that an employer can be liable for unlawful retaliation or discrimination—for example in a termination—even when the decisionmaker did not act with a discriminatory or retaliatory motive, if that decision maker was influenced by another employee who did have a discriminatory or retaliatory motive. In other words, a supervisor's motives in recommending an adverse employment action can be imputed to the employer if this motive actually influenced the employer's final termination decision.

Got your popcorn and ready for a story? The cat’s paw theory is based on a fable, "The Monkey and the Cat," about a monkey who persuades a cat to pull roasting chestnuts from the embers of a fire, promising the cat some of the goodies. As the cat scoops the chestnuts from the fire, burning his paw in the process, the monkey grabs them and gobbles them up, leaving the cat to nurse a burnt paw. So, a "cat’s paw" is essentially a person who does another’s dirty work.

The Facts

Jeannie Parker, a United Airlines' employee responsible for booking flight reservations, was approved for FMLA leave due to her own serious health condition, vision disorder, and also, to care for her father, who had cancer.

Five months after United approved this leave, Ms. Parker's supervisor suspected Ms. Parker was guilty of a conduct issue known as "call avoidance." Specifically, the supervisor believed Ms. Parker would tell customers that she would get additional information, put the customers on hold BUT instead of getting information, she would have personal conversations with co-workers while the customers waited. The supervisor listened to certain call recordings, and then, met with Ms. Parker and a union representative to discuss three calls in question. After the meeting, Ms. Parker was suspended while the supervisor conducted further investigation (which included the supervisor listening to additional call recordings). The supervisor concluded and recommended that Ms. Parker be dismissed as an employee. However, United's policies required additional steps before termination could happen.

First, the supervisor had to attend a meeting, which was conducted by a different manager, between Ms. Parker and her union representative. During this meeting, the parties could present arguments and evidence. After this meeting and after listening to the call recordings, the manager agreed with the supervisor's recommendation, and Ms. Parker was terminated.
But, Ms. Parker, under United's policies, could appeal this decision. Ms. Parker submitted a grievance appeal to yet another manager. This led to a conference call with the new manager and the union representative where they could participate and present further arguments and evidence. Ms. Parker chose not to participate in this call and relied upon the union representative who admitted that Ms. Parker had &"No excuse for the demonstrated behavior of call avoidance except for being under extreme mental duress." The union representative asked that United give Ms. Parker another chance, but the manager declined and concluded that Ms. Parker's termination was proper.

Ms. Parker sued claiming that her immediate supervisor's recommendation to terminate her was in retaliation for her taking FMLA leave, and that improper motive should have been imputed to United (enter the "cat's paw" theory).

The 10^th Circuit agreed with the lower district court and concluded that even if, for the sake of argument, the FMLA leave taken by Ms. Parker had "sparked retaliation from her supervisor," United's internal procedures broke the causal chain between the supervisor's retaliatory motive and the ultimate decision to terminate Ms. Parker. The court stated, "In our view, United broke the causal chain by directing other managers to independently investigate and decide whether to adopt the supervisor's recommendation." In this case, the court found that United broke this chain as follows:

In the first meeting the manager relied upon her own investigation and decision on whether to adopt the supervisor's recommendation;
And even if the first meeting had not broken the causal chain, United's appellate procedure did break this chain as this involved independent decisionmakers reviewing the termination.

The case is Jeannie Parker v. United Airlines, Inc., which can be found here. The 10^th Circuit Court of Appeals has jurisdiction over federal district courts in Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah.

Pings for employers

Even though the court found for United in this case, we suspect many employers do not have as robust of termination policies as United. Here are some important takeaways:

Consider having at least one level of independent review of any proposed termination decision. (United had two levels – all the better!) You do not have to be as formal in your termination protocol as United, but it is always a good practice to have an independent non-biased review of all supervisors' recommendations for termination.
In addition, consider having a post termination appeal process that the employee can initiate. Again, this does not need to be as formal as United's process, but such an independent review may help you if a termination decision is challenged and is a final check that the termination was appropriate.
Always consult with Human Resources or your employment law attorney before making a termination decision, especially if the employee has been taking FMLA or has exercised other protected rights, such as requesting an ADA accommodation.

Matrix Can Help!

Matrix offers integrated FMLA/leave of absence, ADA, and disability management services. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.