Yesterday, a divided Sixth Circuit Court of Appeals reversed an employer's summary judgment in a retaliation case where the pure-hearted decisionmaker relied primarily upon the performance evaluations completed by the allegedly retaliating supervisor in deciding to terminate the plaintiffs' employment. Bishop v. Ohio Dep't of Rehab. & Corrections, No. 10-3399 (6th Cir. 7-9-13). The plaintiffs successfully argued on appeal the cat's paw theory that the prison warden terminated the plaintiffs in "rubber stamp" reliance on the supervisor's performance evaluations, which were the product of unlawful retaliation. In particular, the plaintiffs had nothing but positive evaluations until they complained about their supervisor's sexual harassment. Shortly thereafter, the supervisor gave them negative performance evaluations which subtly referred to their complaints and not to any other misconduct or issues of poor performance. The warden testified that in terminating their employment she relied on the performance evaluations and could not recall who the plaintiffs were or any other independent events which were not mentioned in their performance evaluations. Moreover, the warden made the termination decision prior to the conclusion of the investigation into the plaintiffs' complaints about their supervisor and apparently without conducting any independent investigation about their performance. While the warden had a general practice of generally consulting with her other executive officers, she could not specifically recall having done so in this case or consulting with anyone who was not similarly influenced by the allegedly retaliatory supervisor. More interestingly, the warden had instigated and signed off on disciplinary action against the plaintiffs in the months preceding their termination, but admitted that she could not remember them (or those incidents) by the time she authorized their termination.
According to the Court's opinion, the plaintiffs and several other female correctional employees complained to the prison warden that their supervisor was discriminating against women in assignments and treatment. Prior to making this complaint, the plaintiffs had only received positive performance evaluations. The Court found there was sufficient evidence that the supervisor knew of the plaintiffs were part of the group making the complaint because there were so few female correctional officers on that shift, because there was evidence that the existence of the complaint was general knowledge and because the supervisor warned one of the plaintiffs just six days after the complaint was lodged (and before the subsequent investigation began) to not to get involved in the "stuff" going on because she was still on probation. Moreover, about a month before the plaintiffs received their first negative performance evaluation from their supervisor, the warden had forwarded to their supervisor similar complaints they made about her.
The Court found that they plaintiffs produced enough evidence of causation to survive summary judgment based on the temporal proximity and the evidence of the grudge which their supervisor held against them:
Here, 34 days elapsed between the date on which the Warden received the complaint (October 17, 2005) and the date on which [the supervisor] signed the negative evaluations of [the plaintiffs] (November 20, 2005), which led to their terminations 22 days thereafter on December 12, 2005. Thus, to satisfy their burden on causation, [the plaintiffs] must offer evidence, in addition to temporal proximity, of retaliatory motive.
. . . First, six days after the Warden received the complaint, [the supervisor] allegedly warned [a plaintiff]: "There is a lot of stuff going on around here, don't get involved in it, remember you are on probation." Second, [another plaintiff] testified that, after the complaint was submitted, [the supervisor] reminded her "a couple of times" that she "was on probation." Third, [she] further testified that "[t]he atmosphere got worse" after the complaint was submitted in that the hostile looks from [the supervisor] were "[m]ore frequent" and "even more hateful." Fourth, some two weeks after the Warden received the complaint, [a plaintiff's] probationary period was extended by the Warden under arguably suspicious circumstances in that no reason was given for the extension other than "due to your performance" and, at the time of her deposition, the Warden had no memory of taking such action against [her].
In fact, the final performance evaluation itself did not reference any other disciplinary issues, but contained the following discussion in one and similar discussion in the other:
Officer Henry has not effectively communicated with her supervisors this reporting period. I expect Officer Henry to listen to her supervisors and to use good judgment on every situation and not blindly follow a suggestion of others. Institutional procedures need to be adhere [sic] to and realize that constructive criticism is a tool that is used to make her a better correctional officer.
To show pretext, the plaintiffs produced evidence that the stated rationale for their termination was not the actual rationale based on the "cat's paw" or "rubber stamp" theory. Under this theory, "although the Warden herself did not harbor any discriminatory animus toward them, the Warden was influenced by [their supervisor], who did harbor a grudge against [the plaintiffs] as a result of their protected activity."
"When an adverse . . . decision is made by a supervisor who lacks impermissible bias, but that supervisor was influenced by another individual who was motivated by such bias, this Court has held that the employer may be held liable under a 'rubber-stamp' or 'cat's paw' theory of liability." Arendale v. City of Memphis, 519 F.3d 587, 604 n.13 (6th Cir. 2008). See also Cobbins v. Tenn. Dep't of Transp., 566 F.3d 582, 586 n.5 (6th Cir. 2009) ("The 'cat's paw' theory refers to a situation in which a biased subordinate, who lacks decisionmaking power, influences the unbiased decisionmaker to make an adverse . . . decision, thereby hiding the subordinate's discriminatory intent.") . . .
To succeed on a cat's-paw theory, the employee "must offer evidence of a 'causal nexus' between the ultimate decisionmaker's decision to terminate the [employee] and the supervisor's discriminatory animus." Madden v. Chattanooga City Wide Serv. Dep't, 549 F.3d 666, 677 (6th Cir. 2008). In other words, the employee must show that, "[b]y relying on this discriminatory information flow, the ultimate decisionmakers acted as the conduit of the supervisor's prejudice – his cat's paw." Id. at 678 (internal quotation marks omitted). However, a causal nexus is lacking if the ultimate decision "was based on an independent investigation" and the employee "presented no evidence that the supervisor's discriminatory animus had influenced the decision." Id.
In this case, the termination letter stated that the decision was based upon their performance evaluations and the warden admitted as much in the following administrative investigation. There was no evidence that the warden had conducted or relied on any other independent investigation of the plaintiffs' performance beyond what their supervisor put in the allegedly retaliatory and negative performance evaluations. While the warden had a general practice of consulting with her other executive officers and personnel files, there was no evidence that she had specifically done so in this case. "And even if the Warden did inquire further, she might have consulted Lt. Richardson, the very person alleged to have poisoned the Warden's decisionmaking process, or someone else who was influenced by Lt. Richardson." Therefore, construing the evidence most favorably to the plaintiffs – as must be done on a defendant's summary judgment motion, the Court ruled there were sufficient factual disputes for a jury to resolve.
Our conclusion is not altered by the fact that the Warden, at one time, had personal knowledge of the incidents purportedly underlying the negative performance evaluations, as illustrated by the fact that she ordered investigations into some of those incidents and approved disciplinary actions following those investigations. Any personal knowledge that the Warden may have had does not break the casual nexus between the Warden's termination decisions and [the supervisor's] retaliatory animus because there is no evidence that the Warden remembered the incidents and connected them to [the plaintiffs] at the time she made her ultimate decision to terminate [them]. The Warden testified during her deposition that, as she sat there on that day, she did not remember [the plaintiffs]. At the very least, the Warden's complete unfamiliarity with [the plaintiffs] would justify a jury in doubting whether she was independently familiar with the incidents purportedly underlying the negative performance evaluations at the time the termination decision was made and, ultimately, whether the Warden conducted any meaningful review, beyond reviewing the performance evaluations, before authorizing the terminations.
The dissent would have resolved some factual inferences in favor of the employer based on the warden's general past practices and without any specific evidence that she followed her past practices in this case.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
