Court Discusses and Applies “Cat’s Paw” Theory in Sexual Harassment/Retaliation Case

In Vasquez v. Empress Ambulance Serv., Inc., No. 14 CIV. 8387 NRB, 2015 WL 5037055 (S.D.N.Y. Aug. 26, 2015), the court addressed the following question:

[W]hether an employer is liable for unlawfully retaliating against a plaintiff employee when (1) the plaintiff reports that a coworker [here, Gray] has sexually harassed her, (2) the employer promptly investigates, (3) the co-worker deceives the employer with false information that inculpates both himself and the plaintiff in work-related misconduct, and (4) the employer, crediting that false information, fires the plaintiff.

SDNY Judge Buchwald rejected the plaintiff’s argument that “under such circumstances, the co-worker’s improper intent should be attributed to the employer under the so-called ‘cat’s-paw’ theory”, and granted defendant’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).

In this case, plaintiff (Vasquez) asserted that she was sexually harassed by a co-worker (Gray). Among other things, plaintiff claimed that Gray flirted with her, touched her, asked her out on dates, and sent her a text message containing a picture of his penis. Plaintiff complained to her employer about Gray’s conduct. Gray, fearing discipline, concocted a ruse (which included manipulating his iphone to make it seem as though plaintiff had sent a racy photo of herself in response to the penis picture). The company believed Gray and fired plaintiff because she sexually harassed Gray.

Plaintiff asserts claims for retaliation unde Title VII and the NYS Human rights Law, relying only on the “cat’s paw” theory.

The court explained the “cat’s paw” theory (adopted from an Aesop fable involving a cunning monkey who tricks a cat into obtaining chestnuts from a fire) as follows:

In a cat’s paw case (also known as a “subordinate bias” or “rubber stamp” case), an employer is held liable for an adverse employment decision made by an agent of the employer … who lacks any improper motivation but who acts on the basis of a recommendation from or information provided by another, unlawfully motivated agent.

The court noted that although neither the Supreme Court nor the Second Circuit has explicitly adopted the cat’s paw theory in a Title VII case, it cited various cases and decided to “follow the substantial weight of authority … that a cat’s paw theory will support entity liability for retaliation under Title VII.”

It further explained that, while the biased person need not be the plaintiff’s “supervisor”, there are limits on when the cat’s paw theory applies:

[A] subordinate’s biased recommendation supports cat’s paw liability when the subordinate acts within the authority delegated by [his] employer[] (i.e., when the biased person acts within the scope of his employment), or when the subordinate, although not formally delegated the power to make decisions, acts as the [employer’s] agent[] (i.e., when liability would be imputed under traditional agency principles). Either of these possibilities requires that the biased person, by virtue of his position or relationship with the employer or decisionmaker, occupy a position of sufficient confidence … to be able to corrupt the determination at issue. The biased person must play a meaningful role, as an actor in the events resulting in the adverse employment decision, and not merely serve as an informant, analogous to a witness at a bench trial. Conversely, an employer is not liable simply because it acts on information provided by a biased co-worker.

Applying the law, the court held that plaintiff “has not plausibly alleged any basis to impute Gray’s retaliatory intent to Empress” where, among other things, “Gray’s manipulative conduct was well outside the scope of his employment.”

In addition,

not only did Gray lack authority, however broadly defined, delegated by Empress, it has not been suggested that Gray occupied any position of confidence within Empress or with the Empress decisionmakers. Such a suggestion is particularly implausible given that Gray was himself under investigation for sexual harassment at the time that he misled the Empress Committee. And the evidence that Gray provided—which tended to inculpate Gray himself in the misconduct of exchanging “sexual banter” with a co-worker on duty—could scarcely have improved his standing with the decisionmakers, or his ability to influence the decisionmaking process.11 Nor does the Amended Complaint plausibly allege that Gray played a meaningful role in the adverse employment decision. Instead, Gray’s position was quite akin to that of a (perjuring) witness at trial. That Empress management credited his deceptive story is regrettable (assuming, as we must, that Vasquez’s allegations are true), but an employer is not liable for retaliation simply because it was deceived.

The court concluded that “because there is no basis in the allegations of the Amended Complaint to impute Gray’s retaliatory intent to his employer or its decisionmakers, and thus Empress cannot be held liable for retaliation under the cat’s paw theory.”

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