2d Circuit Affirms Dismissal of Gender Discrimination, Rejects “Cat’s Paw” Theory

In Campbell v. national Fuel Gas Distribution Corporation (2d Cir. 17-1820 May 25, 2018) (Summary Order), the court affirmed the dismissal of plaintiff’s Title VII gender discrimination claim.

Initially, the court rejected plaintiff’s attempt to establish discrimination by comparing herself to male co-workers:

We affirm for substantially the same reasons given by the district court in its thorough and well-reasoned analysis. Campbell argues that she was fired for engaging in behavior that was contrary to company policy, but common among employees. Per the argument, her firing reflects her supervisor’s animus towards her on the basis of gender. She principally points to two men, who she asserts engaged in similar conduct but were not fired. Comparing similarly situated employees “is a recognized method of raising an inference of discrimination for the purposes of making out a prima facie case.” Ruiz v. Cty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010). We have also endorsed this analysis as a means of establishing pretext, though it is less common. See, e.g., Luciano v. Olsten Corp., 110 F.3d 210, 216 (2d Cir. 1997). “The standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff’s and comparator’s cases, rather than a showing that both cases are identical. In other words, the comparator must be similarly situated to the plaintiff in all material respects.” Ruiz, 609 F.3d at 494 (internal punctuation omitted). Neither of the comparators Campbell points to were particularly similarly situated. One was never found to have engaged in misconduct. The other self-reported an incident, while Campbell was caught in the act. The remaining evidence potentially indicating gender discrimination by her supervisor was minimal. On this record, Campbell has not established a rational inference that her firing was the product of discrimination.

It also rejected plaintiff’s reliance on the so-called “cat’s paw” theory of liability:

We also observe that Campbell seeks to rely on a “cat’s paw” theory of liability, by arguing that her supervisor harbored animus when filing a report of her misconduct, and that the individuals who actually decided to terminate her employment gave effect to that animus—even though they did not personally hold a discriminatory motive. However, as we have explained, such a theory will succeed “[o]nly when an employer in effect adopts an employee’s unlawful animus by acting negligently with respect to the information provided by the employee, and thereby affords that biased employee an outsize role in its own employment decision.” Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 275 (2d Cir. 2016). We strain to see any indication of negligence on this record, where Campbell admits to engaging in misconduct, and National Fuel has fired nearly thirty other employees, most if not all men, for engaging in similar behavior.

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