No 'Cat's Paw' Liability if Decision-Makers Conducted Their Own Investigations

​Even if an employee's use of leave under the Family and Medical Leave Act (FMLA) sparked retaliation from her supervisor, the employer was not liable under a "cat's paw" theory because it directed other managers to independently investigate and decide whether to adopt the supervisor's recommendation, a federal appeals court ruled. The employer's procedures broke the causal chain between the supervisor's possibly retaliatory motive and the firing of the employee, the court said.

The employee worked for an airline booking flight reservations. She took FMLA leave because she had a vision disorder and her father had cancer. About five months after approving the leave, the employee's supervisor suspected that she was avoiding new calls by telling customers that she would get additional information, putting the customers on hold and chatting with co-workers about personal matters while the customers waited. The supervisor characterized the employee's conduct as "call avoidance."

This suspicion led to a meeting between the supervisor, the employee and a union representative. At the meeting, the supervisor played recordings of three calls between the employee and customers. During each of the three calls, the employee had placed the customer on hold for a long time or hung up on the customer.

Following this meeting, the airline suspended the employee while investigating her performance. During this investigation, the supervisor reviewed more of the employee's phone calls with customers and recommended that the airline fire the employee.

The airline's policies prohibited the supervisor from firing the employee. Under these policies, the airline had to select a manager to conduct a meeting and allow participation by the employee, her supervisor and a union representative. All of them could present arguments and evidence, and the manager would decide whether to fire the employee.

The airline applied this policy, selecting a manager to conduct the meeting. The manager heard from all parties, listened to some of the employee's calls and sided with the supervisor, agreeing with her recommendation to fire the employee for serious policy violations.

The employee then appealed the firing by submitting a grievance to a senior manager, pursuant to the airline's established policies.

The employee declined to participate in the grievance proceedings, relying on her union representative. The union representative admitted that the employee had "no excuse for the demonstrated behavior of call avoidance except for being under extreme mental duress."

The union representative, however, asked the employer to give the employee another chance. The senior manager declined and concluded that the airline hadn't acted improperly in firing the employee.

The employee filed a lawsuit claiming unlawful retaliation under the FMLA. The lower court dismissed the lawsuit before trial, ruling that the employer had presented a legitimate reason for firing the employee—call avoidance—and that the employee had not shown that the employer's asserted reason was a pretext for its retaliatory action.

In presenting the case to the lower court, the employee had relied on the cat's paw theory, which imputes a supervisor's motive to an employer if the motive influenced the employer's decision.

The district court rejected the employee's reliance on the cat's paw theory, and the appeals court agreed. Even if the employee's use of FMLA leave had sparked retaliation from her supervisor, the appellate court said, the airline's procedures had broken the causal chain between the supervisor's retaliatory motive and the firing.

The airline argued that it broke the causal chain by relying on independent decision-makers to investigate, decide whether to adopt the supervisor's recommendation, give fresh consideration and decide whether to reverse the decision to fire the employee. The court agreed, noting that the cat's paw theory does not apply when independent decision-makers conduct their own investigations without relying on biased subordinates.

The court agreed with the employee's contention that her opportunity to present arguments would not alone prevent liability, noting that the inquiry involves the independence of the employer's investigation, not the employee's opportunity to respond. But, the court said, the manager listened to the employee's calls and made her own decision rather than relying on the supervisor's recommendation. The manager made her own findings based on undisputed evidence of deficiencies in the employee's work, the court said.

Even if the first manager's decision had been tainted, the employee appealed by filing a grievance, triggering a new opportunity to contest the firing before another manager, the court said. The employee declined to participate, relying instead on her union representative. The employee cited no evidence of the senior manager's bias.

Parker v. United Airlines Inc., 10th Cir., No. 21-4093 (Sept. 26, 2022).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.