11th Circuit Rules Cat's Paw Theory Not Applicable in Age Discrimination Cases

Author: Beth P. Zoller, Brightmine Legal Editor

In Sims v. MVM, Inc., +2013 U.S. App. Lexis 1130 (11th Cir. 2013), the 11th Circuit Court of Appeals determined that the cat's paw theory of liability does not apply to the Age Discrimination in Employment Act (ADEA). Thus, employers in the 11th Circuit may have an easier time defending against ADEA claims.

A "cat's paw" case seeks to hold an employer liable for the bad acts of a supervisor, even though that supervisor did not make the ultimate employment decision (such as firing or demoting an employee). The term "cat's paw" derives from a fable in which a monkey induces a cat to remove chestnuts roasting on a fire; the cat burns its paw and the monkey, unscathed, runs away with the chestnuts. The US Supreme Court endorsed the cat's paw theory of liability in Staub v. Proctor Hospital, ++131 S. Ct. 1186 (2011), a Uniformed Services Employment and Reemployment Rights Act (USERRA), +38 U.S.C. §§ 4301 et seq. case, but did not specifically state whether it applied to other antidiscrimination statutes.

Cat's Paw Theory Not Available Under the ADEA

In the 11th Circuit case, Solomon Sims (Sims) claimed age discrimination in violation of the ADEA against his former employer, MVM, based on his termination at 71 years of age. MVM argued that Sims was lawfully terminated during a reduction-in-force and that Sims's age did not factor into the project manager's decision to terminate him. In response, Sims argued that the project manager who terminated him acted as the cat's paw for the assistant project manager's discriminatory bias.

The 11th Circuit refused to apply the cat's paw theory of liability and held that no reasonable fact-finder would find that the employer would not have made the same decision but for Sims's age. The appeals court agreed with the lower court's dismissal of the case, finding no age discrimination on the part of the employer or the supervisor who made the termination decision.

In declining to apply the cat's paw theory of liability to this ADEA case, the appeals court focused on the fact that under USERRA and Title VII, plaintiffs are required to show that discrimination is a "motivating factor" in the adverse employment action or show that the discriminatory bias was the proximate cause, requiring only some relationship between the employment action and the employer's conduct. However, under the ADEA, a plaintiff is required to show that he or she suffered an adverse employment action "because of" his or her age. In other words, but for the plaintiff's age, the plaintiff would not have suffered an adverse employment action. This is a harder link to prove than mere "motivating factor" or proximate cause because it requires that the discriminatory bias have a determinative influence on the employer's adverse employment action. The court cautioned that the same rules must not apply to different statutes without careful consideration and examination.

Advice for Employers

Even though the employer was victorious in this situation, it is critical for employers to provide discrimination, harassment and retaliation training to all employees, supervisors and managers, including those who have the responsibility to hire, fire and discipline employees, as well as those who direct other employees and may have the opportunity to influence employment decisions. This is especially important as the Supreme Court is poised to issue a decision in Vance v. Ball State University, ++646 F.3d 461 (7th Cir. 2011), cert. granted, ++2012 U.S. LEXIS 4685 (U.S. June 25, 2012) (Case No. 11-556), and determine who is a supervisor for purposes of discrimination and harassment. (The Court will decide whether a supervisor should be defined as an individual with the direct power to hire, fire, demote or discipline employees working in positions under him or her, or by the broader definition of any individual who has authority from the employer to direct and oversee an employee's daily work.)

Further, it is best practice for an employer to make sure that all negative employment decisions are based on legitimate, nondiscriminatory reasons and are supported by solid evidence. To do so, the employer should fully investigate all recommendations and document all factors considered before concluding that an adverse employment action should be taken. Employers should not solely rely upon one individual's account, but instead should take into consideration as many recommendations as possible before reaching a conclusion. By adhering to a zero tolerance policy for discrimination, harassment and retaliation, and training employees and supervisors to do the same, employers can minimize the risk of liability and better defend themselves in case of a lawsuit.