In Zamora v. City of Houston, 14-20125 (Aug. 19, 2015), the Fifth Circuit joined the Sixth, Eighth, and Tenth Circuits in holding that the “cat’s paw” theory of causation can also be utilized in Title VII retaliation cases, which require proof of “but for” causation between the retaliatory sentiment or animus and the adverse employment action.
Case Background: Zamora sued the City for Title VII retaliation after he was suspended for 10 days by the chief of police following an Internal Affairs investigation. Although it was undisputed that the actual decision maker (the chief of police) did not exhibit any retaliatory animus, Zamora nevertheless argued that the “CRU supervisors made retaliatory statements to Internal Affairs, intending to cause Zamora to suffer an adverse employment action, and that they succeeded.” The Internal Affairs investigation stemmed from a complaint that the CRU supervisors had violated departmental policies by being untruthful during their depositions related to a pending lawsuit that Zamora had filed. The city argued that even if Zamora’s CRU supervisors were motivated by retaliatory animus, their statements during the investigation were not the but-for cause of Zamora’s suspension, since the decision to suspend Zamora had been made by a much higher-level decision maker (the chief of police) and was subject to several layers of escalating internal review. The jury disagreed, awarding him $150,000.00 in past and future compensatory damages. The City appealed the denial of its JNOV motion, arguing that Zamora had failed to establish causation as a matter of law.
What is the “cat’s paw” theory of causation? Plaintiffs use what is called a “cat’s paw” theory of liability, approved for motivating-factor cases in Staub v. Proctor Hospital, 562 U.S. 411 (2011), when they cannot show that the decision maker – the person who took the adverse employment action – harbored any discriminatory animus. In Staub, the United States Supreme Court held that “if a supervisor performs an act motivated by discriminatory animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.”
What does the plaintiff typically need to show to establish a Title VII case? A plaintiff asserting a Title VII discrimination claim must show that the employer’s discriminatory motive “was a motivating factor” for an adverse employment action. In University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013), the Supreme Court clarified that a plaintiff asserting a Title VII retaliation claim must meet a higher standard of causation: such a plaintiff “must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” Said another way, a plaintiff must show that the adverse action would not have occurred had he or she not engaged in protected activity.
What is the Fifth Circuit’s new test for cat’s paw in the retaliation context? Reading Staub and Nassar together, the Fifth Circuit holds that in order for a plaintiff to establish causation under a cat’s paw theory, the plaintiff must produce sufficient evidence that (1) his or her supervisors, motivated by retaliatory animus, took acts intended to cause an adverse employment action; and (2) those acts were a but-for cause of the adverse employment action.
How did the Fifth Circuit reach its decision? The Fifth Circuit explained that Zamora’s suspension did not result from an Internal Affairs investigation of allegations of misconduct against him. Instead, it resulted from an investigation prompted by the complaint that certain of Zamora’s CRU supervisors had violated departmental policies, including the prohibition against untruthfulness. That the investigation of Zamora’s CRU supervisors resulted in a recommendation to instead punish Zamora for untruthfulness was in large part due to his supervisors’ retaliatory statements. The court explained that the CRU supervisors managed, with their retaliatory statements, to turn an investigation of purported wrongdoing by them into a recommendation that one of their accusers be disciplined. In particular, “[w]ithout their statements against Zamora, the investigator would not have recommended discipline; the departmental discipline committee would not have adopted [the investigator’s] recommendation; and the chief of police would not have had any recommendation to approve. Clearly, Zamora was disciplined because of the CRU supervisors’ retaliatory statements.”
What about the business judgment rule? The facts of the case made it easy for the Fifth Circuit to reach its decision. However, long-standing judicial precedent in the Fifth Circuit holds that companies do not necessarily need to make correct or even fair employment decisions, just nondiscriminatory ones. Indeed, Title VII and similar anti-discrimination laws are not intended to be a vehicle for judicial second guessing of business decisions, nor to transform the courts into personnel managers. The Fifth Circuit has also long recognized that an investigator or decision maker is entitled to credit one or more employee’s version of facts over another’s: a mistaken or incorrect belief can qualify as a legitimate reason to terminate an at-will employee. Thus, until Zamora, it has been settled law in the Fifth Circuit that “a fired employee’s actual innocent of h[er] employer’s proffered accusation is irrelevant as long as the employer reasonably believed it and acted on it in good faith.” See, e.g., Cervantez v. KMGP Servs. Co., 349 Fed. Appx. 4, 10 (5th Cir. 2009). And yet, the Zamora case seems to contradict the honest-belief doctrine and the business judgment rule. Perhaps subsequent courts will distinguish Zamora since the appeal followed a jury verdict against the City. It remains to be seen how district courts will resolve the tension between the honest-belief doctrine, business judgment rule, and application of the cat’s paw theory – especially in retaliation cases.
What are the takeaways from this case? The Fifth Circuit has made clear that companies can no longer avoid discrimination or retaliation lawsuits simply by isolating the decision maker from the discrimination or retaliation of a supervisor if the supervisor is in a position to exercise influence or leverage over the decision maker. There are three primary takeaways:
- The investigator(s) should not be in the business of “recommending” a personnel action. Instead, the investigator(s) should only collect information, interview witnesses, and summarize the facts obtained as well as the policies or work rules implicated.
- The decision maker should conduct an independent review of all information collected during the investigation. This should include an independent review, for example, of the employee’s personnel file and discipline history, witness statements, applicable company policies, etc. Nor should the decision maker hesitate to ask additional questions from the investigator, the employee in question, or any witnesses.
- Before terminating or approving the termination of an employee who has a pending lawsuit against the company, you should contact legal counsel.
Now, more than ever, decision makers should not just rubber-stamp and base their employment decision entirely on the findings and recommendation of an investigation.