Curing Cat’s-Paw

By Bill Wright

In a Title VII retaliation claim, a plaintiff has to prove protected conduct was the “but-for” cause of the materially adverse action. Can a plaintiff prove “but-for” causation relying on the supposed retaliatory animus of someone other than the decision maker? Yes, but not if the decision-maker acts independently of the so-called “cat’s paw.”

In Thomas v. Berry Plastics Corp., No. 14-3200 (10th Cir. Sept. 25, 2015), plaintiff was subject to 13 disciplinary actions over 7 years and was on a last chance agreement. After the shift-lead blamed plaintiff for a quality control issue, the manager fired plaintiff. Plaintiff appealed internally, and two independent managers affirmed the discharge. In court, plaintiff tried to show that the shift-lead was biased because he had not included exculpatory information in his report. The court ruled the evidence failed to show bias, but also ruled that the employer’s internal review of the discharge decision was independent of the shift-lead’s information in that it provided the plaintiff an opportunity to tell his side of the story.

Just hearing the discharged employee out may be enough to show independence. Also, apparently, employers may cure any lack of independence with a review process that occurs after the decision. It is never too late to show independence.