Retaliation Claim Proceeds to Trial

By Adam D. Brown September 6, 2022

Takeaway: This case highlights the risks inherent in making a termination decision based on a technical infraction that lacks apparent importance. It also shows that a lack of strong oversight by an organization's HR department can create significant vulnerabilities.

Strictly interpreting a rule, policy or other directive governing employee conduct can lead to decisions that may appear pretextual. The appeals court's analysis of how the Federal Aviation Administration (FAA) interpreted and applied the rehabilitation plan illustrates that, where an offense is objectively minor and termination may be disproportionately severe, the employer should carefully consider lesser alternatives, especially where the employee has made a complaint of discrimination or otherwise engaged in protected activity.

Additionally, superficial or overly deferential HR oversight and review can open the door to claims of wrongful conduct. Independent assessment of a termination recommendation from a supervisor can provide a critical check on any appearance that the supervisor was the cause of the termination decision despite lacking sole authority to the decision. An employer with a robust process for such decisions thereby limits the risk of "cat's paw" liability based on the supervisor's conduct.

Approval of a termination decision should not be a rubber-stamp affair. Thoughtful consideration and review can avoid many pitfalls.

​The 7th U.S. Circuit Court of Appeals ruled that a former employee of the Federal Aviation Administration can proceed to trial on a claim of retaliation under a "cat's paw" theory. There were issues for a jury to decide as to whether a supervisor, who lacked authority to fire the employee, nonetheless caused her to lose her job after she complained of religious discrimination.

The employee, who was subject to a strict drug and alcohol policy, was arrested for driving while intoxicated, which she self-reported. The policy allowed the employee to avoid immediate disciplinary action if she completed an FAA-designed rehabilitation plan. Failing to adhere to the plan would result in termination.

The FAA established a rehabilitation plan that required the employee to get approval before taking medications and to attend meetings of Alcoholics Anonymous. The employee objected to the Alcoholics Anonymous provision, which she said violated her religious beliefs, and she requested a religious accommodation.

The employee and her supervisor did not get along, and the supervisor chafed at the accommodation request. The employee complained internally and, ultimately, filed a formal complaint of religious discrimination.

Meanwhile, the employee clashed with the FAA about how she was supposed to request medication approval. The plan directed her to make the approval requests by phone, but she repeatedly e-mailed them, despite receiving multiple instructions to use the phone.

Following the discrimination complaint, the supervisor drafted a memorandum of noncompliance with the rehabilitation plan, based on the employee's failure to make medication approval requests by phone. An HR professional determined that termination was necessary, based entirely on the supervisor's memorandum.

The employee later filed suit, focusing on the conduct of the supervisor. The district court granted summary judgment for the federal government on the retaliation claim, determining that the employee could not show a causal connection between her discrimination complaint and the termination decision, because there had been an independent assessment by other FAA staff that insulated it from the supervisor's alleged animus. The employee appealed to the 7th Circuit, seeking to revive her retaliation claim.

The employee's supervisor did not have authority to fire her. So, the employee had to show under a cat's paw theory that the supervisor's actions proximately caused the termination decision—in the court's words, "no easy feat," given the layers of bureaucracy involved.

Nevertheless, the court found that, contrary to the ruling of the district court, the employee had mustered enough evidence to establish triable issues.

The court determined that the FAA's interpretation and enforcement of the rehabilitation plan were so "objectively unreasonable" that a jury could justifiably find them pretextual. The court also concluded that termination was a disproportionately severe penalty.

Additionally, the court noted, the supervisor, who was a subject of the employee's discrimination complaint, had been "adamant" about termination, which she knew "automatically followed" the noncompliance memorandum.

Based on these and other factors, the 7th Circuit reversed the grant of summary judgment and sent the matter to the district court for further proceedings.

Huff v. Buttigieg, 7th Cir., No. 21-1257 (July 28, 2022).

Adam D. Brown is an attorney in the Philadelphia office of Duane Morris LLP.



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