The Tenth Circuit Court of Appeals, in Parker v. United Airlines, Inc., has held that the “cat’s paw” theory of liability for FMLA retaliation or interference claims does not apply if the employer conducts an independent review of the evidence when making a final decision to terminate an employee. Accordingly, in Parker, the Tenth Circuit found that the employer’s decision to terminate an employee was proper because the decision was made by an “independent decision maker [who had conducted] her own investigation.”
Background. Under the cat’s paw theory of liability, an employer may be liable when a manager who lacks bias is influenced by a biased subordinate supervisor to take a negative employment action against an employee. In this case, the cat’s paw would be the unbiased manager being misled by the biased supervisor into taking adverse employment action against an employee who took FMLA leave. When an employer takes an adverse employment action that is in accord with the biased supervisor’s recommendation, the employer can only escape liability if it shows that it conducted an independent investigation and determined that the adverse action was warranted.
An FMLA retaliation claim involves an employee who claims that as a result of requesting or taking protected FMLA leave, he or she has been subjected to a materially adverse employment action by the employer, such as a termination, demotion or decrease in salary.
Facts. An employee who worked as a call center representative took FMLA leave because she had a vision disorder and her father had cancer. When she returned to work, her supervisor believed that the employee had been avoiding work by placing customer calls on hold while talking with other employees about her personal matters.
The employer placed the employee on suspension while investigating her performance, which uncovered more calls where the employee placed customers on lengthy holds. The employee’s supervisor recommended the employee’s termination, and a manager was brought in to review the evidence and conduct her own investigation.
Under the employer’s policy, the supervisor was prohibited from terminating the employee. Instead, the employer’s policy required it to select a manager to conduct a meeting with the employee, a union representative and her supervisor, and the manager would decide whether to fire her. In addition, the policy provided the employee with the opportunity to appeal the firing with another manager through a grievance process.
Ultimately, the manager decided to fire the employee based on evidence of her poor work performance. The employee sued the employer in federal district court, alleging that the employer terminated her in retaliation for exercising her FMLA rights. The district court dismissed the matter in favor of the employer. The employee appealed to the Tenth Circuit, arguing that “cat’s paw” liability against the employer could be inferred because the manager who made the termination decision relied on information from the allegedly biased supervisor regarding the employee’s job performance.
Tenth Circuit. The Tenth Circuit upheld the district court’s dismissal in favor of the employer, finding that the employee did not submit sufficient evidence to establish a “cat’s paw” theory of liability because she had failed to show that those responsible for her firing were influenced by the retaliatory motives of her supervisor.
In reaching this decision, the Tenth Circuit initially noted that the employer’s policy of obtaining considerations by independent decision makers when making FMLA termination decisions insulated the employer against allegations that the supervisor’s bias led to her firing. The court explained that “[FMLA] Retaliation entails a causal link between an employee’s use of FMLA leave and the firing. That causal link is broken when an independent decision maker conducts her own investigation and decides to fire the employee…. In our view, [the employer] broke the causal chain by directing other managers to independently investigate and decide whether to adopt the supervisor’s recommendation.”
Furthermore, after reviewing the facts, the Tenth Circuit rejected the employee’s argument that the manager had relied on the supervisor’s recommendation in deciding to fire her. The Tenth Circuit also determined that the employee had failed to produce any evidence showing that the reason for her firing, which her supervisor had said was due to serious policy violations during customer calls, was pretextual. Finally, the Tenth Circuit found that the employer was insulated from bias allegations because under the employer’s policy the employee had a chance to contest her firing during a grievance process before another manager.
Employer Takeaway. Before taking adverse employment actions related to or involving FMLA leave, prudent employers should carefully and critically assess the matter. An independent review of the relevant evidence is necessary to ascertain the facts and whether disciplinary action or termination is justified under the circumstances. This investigation should be undertaken by members of management who are independent from those individuals presenting information or making recommendations. Moreover, careful attention should be given to the consistent application of company policy and practices to avoid claims of disparate treatment, discrimination, or retaliation.