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Sixth Circuit Recognizes “Cat’s Paw” Theory of Liability in FMLA Retaliation

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By: Jonathan H. Krol and Adair M. Smith

May 30, 2017

In Marshall v. Rawlings Co., a 2-1 split decision, the Sixth Circuit recently adopted the cat’s paw theory of liability for the first time in an FMLA retaliation lawsuit. Marshall v. Rawlings Co. LLC, 2017 U.S. App. LEXIS 6854 (6th Cir. April 20, 2017). The “cat’s paw” theory expands potential exposure of an employer by making it liable for the discriminatory animus of a lower-level supervisor who did not make the adverse employment decision at issue, but who exerted some degree of influence over the ultimate decisionmaker.

In Marshall, the plaintiff was first demoted and later terminated after using FMLA leave to address mental health problems. The plaintiff claimed that her two immediate supervisors were biased against her for taking FMLA leave and influenced the company’s president to terminate her.

The Sixth Circuit explained the rationale for “cat’s paw” and found it equally applicable to FMLA claims as other types of employment discrimination and retaliation claims:

The primary rationale for the cat’s paw theory of liability is that, because a company’s organizational chart does not always accurately reflect its decisionmaking process, an employee of lower rank may have significant influence over the decisionmaker….  The ultimate decisionmaker may be detached from day-to-day operations and consequently apt to defer to the judgment of [a lower-level supervisor]…. As a result a biased low-level supervisor with no disciplinary authority might effectuate the termination of an employee from a protected class….

Id. at *16. Cat’s paw therefore “forecloses a strategic option for employers who might seek to evade liability…through willful blindness as to the source of reports and recommendations.” Id. at *16-17.

While the Marshall v. Rawlings Co. opinion favors employees on its face, employers are not left without defenses in cat’s paw cases.  The Sixth Circuit identified three important characteristics of a cat’s paw liability case:

  • First, the cat’s paw theory applies in cases involving layers of supervision between the plaintiff and decisionmaker so long as the plaintiff can show that a biased lower-level supervisor influenced the ultimate decisionmaker(s). 
  • Second, the cat’s paw analysis is integrated with the McDonnell Douglas burden-shifting framework such that a plaintiff asserting an indirect-proof claim must first satisfy the requirements of McDonnell Douglas to determine if the claim can survive summary judgment. If so, the court must then apply the cat’s paw theory to determine whether the decisionmaker was influenced by a biased subordinate in making an adverse employment decision. 
  • Third, the court discussed the application of the honest belief rule to cat’s paw liability. In a cat’s paw situation, the sincerity or honesty of a decisionmaker in making an adverse employment decision is irrelevant if the decision is rooted in a biased recommendation. The Sixth Circuit found that an exception to this rule occurs when a decisionmaker conducts an “in-depth and truly independent investigation” such that the decisionmaker is not manipulated by lower-level supervisors. Id. at *22. Notably, the court did not expound on what makes an investigation “in-depth” or “truly independent,” but the more independent fact-gathering done by the decisionmaker, the less likely that cat’s paw will apply. This includes meeting with the relevant employee(s), interviewing key witnesses, and independent fact gathering by the ultimate decisionmaker to determine if an adverse employment decision is justified.

Despite the court’s discussion and application of cat’s paw in this case, navigating that theory and the McDonnell Douglas framework can be challenging.  If you have any questions regarding Marshall v. Rawlings Co., or if you wish a copy of this opinion or otherwise have a question or issue arising in the employment context, please feel free to call any one of our Employment Practices Defense Liability Group Members.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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