6th Circuit Interprets "Cat's Paw" Theory of Liability in Chattman V. Toho Tenax American, Inc.

by Art Gutman Ph.D., Professor, Florida Institute of Technology
Cat’s Paw theory stems from a fable by Jean de La Fontaine first published in 1679. In the fable, a monkey dupes a cat into pulling chestnuts from a fire and eats them all as the cat burns it paw. Applied to selection decisions, a decision maker may be “duped” by a non-decision maker into (say) terminating an employee without investigating the facts, thus unwittingly carrying out the wishes of the non-decision maker. This phenomenon has also been termed “rubber stamp” theory. Chattman v. Toho, decided on 7/13/12, is the latest ruling in this domain [2012 U.S. App. LEXIS 14359] in which Cat’s Paw theory was used to overturned a summary judgment favoring Toho. To better understand this ruling, let’s first consider the 10th Circuit’s ruling in BCI Coca-Cola Bottling Co. of Los Angeles v. EEOC (2007) [F.3d 450 F.3d 476] and the Supreme Court’s ruling in Staub v. Proctor Hospital (2011) [131 S. Ct. 1186].

The BCI case was addressed in a DCI alert posted on 4/18/07 by Patricia A. Schaeffer. The facts are that Peters, a black male, worked for BCI in its Albuquerque, New Mexico facility under the supervision of Grado, a Hispanic male. Grado wanted Peters terminated for insubordination, but the local HR manager (Pederson) was not available. So Grado phoned a higher ranking HR manager (Edgar), who worked 450 miles away, and who authorized the termination. The key allegation was that Grado was motivated by racial animus. The defense was that neither of the HR managers knew that Peters was black. The EEOC made the Cat’s Paw argument, which was rejected in by the District Court of New Mexico in a summary judgment and reversed on appeal by the 10th Circuit. Originally, the Supreme Court was scheduled to review the case, but it was dropped a few days prior to oral arguments. Ultimately, the parties settled.

The Supreme Court did address Cat’s Paw theory in Staub v. Proctor. The facts are that Staub was a technician, and an army reservist. His immediate supervisor (Mulally) and Mulally's supervisor (Korenchuk) were alleged to be hostile to his military obligations. Staub received a disciplinary warning and was directed to report to Mulally or Korenchuk after his cases were completed. The supervisors then reported that Staub violated “corrective action” to the vice president of human resources (Buck), who in turn fired Staub without conducting an investigation. Staub filed a grievance, to no avail. Staub then filed a claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). A jury found for Staub, but the 7th Circuit reversed. The Supreme Court then reversed the 7th Circuit, ruling:

If a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.

More recently, the 6th Circuit applied the “proximate cause” theory in the Toho case. The facts are that Chattman, a black male, had evidence that the HR director (Tullock) made racially insensitive statements in the past. After Chattman engaged in a “horseplay” incident with a white co-worker (Johnson), Tullock recommended that Chattman be terminated to the HR vice president (Lane). It was alleged that Tullock then misrepresented the facts surrounding the horseplay incident the HR vice president (Lane) and requested termination of Chattman. Chattman was not terminated, but received a warning that carried with it a one-year penalty preventing him from being promoted.

From this point forward, Tullock appears to have misinformed various members of upper management about the investigation process. For example, Chandler, in his deposition, stated that he, Tullock, and Smith discussed what to do about the incident and agreed not to make any decision or recommendation until after speaking to someone at the corporation's Human Resources and Legal departments. However, after that meeting, Tullock called Jeff Lane, Vice President of Human Resources at Toho's parent company, and recommended Chattman be terminated. In his deposition, Tullock recalled telling Lane that "Ben [Chandler] and I were both recommending termination and Scotty [Smith] as well." Chandler and Smith both deny they recommended termination. Quoting in part from the Staub ruling, the 6th Circuit ruled:

If [an] adverse employment action is related to the discriminatory action, the employer may be liable. Neither independent investigation nor independent judgment on the part of the employer provides a per se defense … [I]f "the independent investigation relies on facts provided by the biased supervisor," then the investigation was not, in actuality, independent and the employer is liable.

Ultimately, the 6th Circuit overturned summary judgment by the district court, ruling that Chattman presented sufficient evidence of “discriminatory animus” by Tullock, and that he presented “genuine issues of fact as to intent and causation.”

The moral of the story is that high ranking decision makers should not be duped into acting like cats, or else they will be burned.

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