Supreme Court Case Update: Staub v. Proctor Hospital and the “Cat’s Paw”

                According to one supervisor at Proctor Hospital in Peoria, Illinois, service in the United States Army Reserves is a “bunch of smoking and joking and a waste of taxpayers’ money” and employee reservists should “pay back the[ir] [employer] for everyone else having to bend over backwards to accommodate [the employee reservist’s] schedule.” At least that’s what employee reservist Vincent Staub alleged in his antimilitary discrimination lawsuit filed against his employer, Proctor Hospital, following his abrupt termination in 2004. Staub v. Proctor Hosp., 131 S. Ct. 1186, 1189 (Mar. 1, 2011).

Facts & Procedural History

Staub served as a member of the United States Army Reserve while also serving as a civilian angioplasty technician until his employment termination in 2004.  Staub alleged his lower level supervisors referred to military duty as “a strain on the department” and urged the hospital to “get rid of him.” Soon after these statements, the supervisors allegedly began to discipline Staub, including issuing a corrective action mandating he not “le[ave] his desk without informing a supervisor.”
Shortly thereafter, Staub’s immediate supervisor informed the Vice President of Human Resources (VP of HR) that Staub violated the corrective action, which he contended was false.  After briefly reviewing Staub’s personnel file, the VP of HR decided to immediately terminate Staub. 

Staub successfully obtained a jury verdict under the Uniformed Services Employment and Reemployment Rights Act (USERRA), but the Seventh Circuit reversed, holding that the discriminatory animus of Staub’s lower level supervisors could not be attributed to the employer and decisionmaker – the hospital’s VP of HR, who ultimately made the decision to terminate Staub after reviewing his personnel file. Instead, the Seventh Circuit held that the hospital’s liability necessitated a showing that the decisionmaker was “singularly” influenced by the immediate supervisors and “blindly relied” upon their discriminatory input under a traditional “cat’s paw” theory of liability.     

Holding

Analogous to Title VII, USERRA prohibits employment actions where unlawful discriminatory animus plays any “motivating factor” in the adverse employment action. 38 U.S.C. § 4311(a). Writing for a 6-2 majority, Justice Scalia analyzed the issue of when an employer may be held liable for the non-discriminatory actions of a decisionmaker who is influenced by the discriminatory actions of lower level supervisors.  The court looked to traditional principles of agency and tort law to make two primary conclusions.   

First, the decisionmaker need not personally maintain a discriminatory animus to be held liable for unlawful discrimination. Modern employers often allocate responsibility for the assessment of employee performance across multiple departments, supervisors, and agents.  Permitting the discriminatory acts and recommendations of such lower level agents, which are designed and intended to produce an adverse employment action and actually cause the adverse action, to escape liability due to the mere insertion of another technical decisionmaker (who acts upon the biased facts and recommendation) would attribute an “implausible meaning” to the plain anti-discriminatory text of USERRA. Traditional tort principles mandate that so long as an unlawful discriminatory animus proximately causes the adverse employment action, an unlawful “motivating factor” is present under USERRA regardless of the decisionmaker.  Proximate cause is, therefore, the touchstone in the motivating-factor analysis.

Second, the court noted that traditional principles of proximate causation may, in some instances, permit an employer to escape liability where the decisionmaker’s independent judgment and review form a superseding, intervening cause of the termination: no liability attaches where “reasons unrelated to the supervisor’s original biased action” entirely motivate the adverse employment action. Thus, if the decisionmaker does more than merely rely upon prior biased facts and recommendations, and instead develops an independent “superseding” motivation to justify the termination – sufficient to eliminate the prior discriminatory causal connection – this will defeat proximate causation in the motivating factor analysis. Justice Scalia noted that employers bear the burden to prove such independent motivations under the plain text of USERRA, and, such motivations must “entirely justif[y]” the action apart from the prior tainted discriminatory facts and recommendations. Quite simply, a low level supervisor’s discriminatory animus must be eliminated as a “motivating factor” which proximately causes the employment termination.

In Staub’s case, this meant his immediate supervisors’ anti-military animus, which was intended to cause his employment termination, constituted an unlawful “motivating factor” because it was relied upon by the decisionmaker and thus proximately caused his discharge. Furthermore, the record indicated that the hospital’s decisionmaker did not conduct any type of investigation or review sufficient to garner any semblance of a superseding, intervening non-discriminatory motivation for the employment termination: the VP of HR relied upon the tainted supervisor’s provision of facts and recommendation to immediately terminate Staub. The discriminatory animus of the low level supervisors proximately caused Staub’s discharge and was thus an unlawful “motivating factor.” 
Justice Scalia’s opinion in Staub presents a well established analytical framework for causation in discrimination jurisprudence, though it is a somewhat far cry from the original application of proximate cause to exploding fireworks packages, tipping scales, and injured railroad passengers 83 years ago. See Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928).  Vincent Staub’s case will undoubtedly affect the discrimination landscape for years to come because of analogous “motivating factor” language present in the majority of federal anti-discrimination statutes.  And, most notably, Justice Scalia expressly cited to “Title VII[‘s]”  analogous “motivating factor” standard in the Staub opinion; an undoubtedly conscious precursor foreshadowing Staub’s applicability to all Title VII “motivating factor” jurisprudence moving forward. So, in the words of James Hetfield and Lars Ulrich, Mrs. Palsgraf, the memory truly remains.

Mark N. Kerkhoff is a Member of MKN Employment Law Solutions, a Charlotte based law firm focusing  exclusively on highly selective federal and state employment law litigation, HR consulting, and a wide range of employment contracts across both North and South Carolina.

 

Article originally published in the North Carolina Bar Association Labor & Employment Law April Newsletter, available at http://laborandemploymentlaw.ncbar.org/newsletters/april2011laboremployment/catspaw.aspx

 

Congress Aims to Fix “Gross” Age Discrimination

Age discrimination is difficult to prove because it is rarely direct or blatant. New legislation recognizes this difficulty and aims to clear up recent confusion, and an unfavorable Supreme Court ruling, by allowing employees to circumstantially show discrimination and to prohibit discrimination if it plays any “motivating factor” in an employment decision.

House and Senate leaders have introduced legislation to correct the Supreme Court’s recent interpretation of the Age Discrimination in Employment Act of 1967 (ADEA). H.R. 3721, titled the “Protecting Older Workers Against Discrimination Act,” was introduced on 10/6/09 in the House by U.S. Rep. Henry Miller, Chairman of the House Education and Labor Committee, as a direct response to the Supreme Court’s decision this summer in Gross v. FBL Financial Services, Inc., 557 U.S. __ (2009).

In Gross, the Supreme Court refused to extend a “mixed motives” framework to cases under the ADEA. Mr. Gross was a 54 year old employee with over 30 years of service whose job responsibilities were stripped and handed off to a younger employee. The jury was instructed under the “mixed motives” standard, which allowed Mr. Gross to show age discrimination if age was any “motivating factor” in his employer’s decision. The Supreme Court reversed and focused on the fact that, unlike Title VII, the ADEA simply did not contain any “motivating factor” language. Title VII’s former prohibition on discrimination “because of” an impermissible factor was amended to now prohibit discrimination if an impermissible factor was a “motivating factor” in the employment decision, but the ADEA was not amended to include the same “motivating factor” language. According to the Court, this indicated that Congress never intended to apply the “motivating factor” mixed motives framework to age discrimination cases. The Court also stated that the “burden shifting framework” in Title VII cases had never applied to the ADEA. Quite simply, “the ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor.” By means of example, an employer motivated 49% by ageist stereotypes, and 51% to cut costs associated with an older employee’s higher salary and higher health care costs (likely permissible under Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993)), would arguably not violate the ADEA under the Gross analysis because age was not “the” sole “but for” motivation.

H.R. 3721 will clarify the burden of proof required in age discrimination cases by analogizing age to all other impermissible forms of discrimination. If passed, an employer will violate the ADEA if age was any “motivating factor” in an employment decision. The Act also makes it clear that discrimination may be proven by “every method available . . . including that [burden shifting framework] set forth in McDonnell Douglas Corp. v. Green . . . .” Furthermore, the mixed motives “motivating factor” analysis will apply to “all federal laws prohibiting discrimination . . . and retaliation . . . and the Constitution . . . and any federally protected activity” and apply to “all suits pending on or after June 17, 2009.” The Act was last assigned to the House Subcommittee on Health, Education, Labor, & Pensions for review on 11/16/2009.

With baby boomers delaying retirement at unprecedented rates in a continuously faltering job market, the Older Workers’ Protection Act will at least provide a consistent method to prove age discrimination. It will certainly not change the landscape. But it is a start.