Employer May be Held Liable for Retaliatory Intent of Low Level Employee

The Second Circuit in Vasquez v. Empress Ambulance Service, Inc., recently adopted the “cat’s paw” theory of liability under Title VII and found that the retaliatory intent of a low-level, non-supervisory employee may be ascribed to an employer where “the employer’s own negligence gives effect to the employee’s retaliatory animus and causes the victim to suffer an adverse employment decision.”

The Plaintiff in this case was an emergency medical technician. She reported to her supervisors that a fellow EMT had sexually harassed her. The harasser suspected that the Plaintiff had complained about his behavior and, in retaliation, manipulated a series of text messages and photos to make it appear as if it was in fact Plaintiff who was soliciting a sexual relationship with him, and presented the altered evidence to the Employer during its investigation.

The Employer then concluded that Plaintiff was having an inappropriate sexual relationship with the co-worker and terminated her. Plaintiff informed the Employer that the co-worker was lying to cover up his own indiscretions and offered to show the Employer her unaltered cell phone messages. The Employer declined to review Plaintiff’s cell phone and further refused to show her the “racy self-taken photo” that the co-worker claimed Plaintiff had sent him. Apparently, this photo was obscured and Plaintiff’s face could not be identified.

Plaintiff brought suit against the employer under Title VII of the Civil Rights Act and the New York State Human Rights Law, claiming that the Employer wrongfully terminated her in retaliation for her complaint of sexual harassment. The district court granted the Employer’s motion to dismiss the complaint on the theory that the co-worker’s retaliatory intent could not be attributed to the Employer and therefore the Employer could not have engaged in retaliation against Plaintiff.

The Second Circuit reversed on agency principles. As a result of the Employer’s negligent investigation of Plaintiff’s claims, the retaliatory intent of the low-level co-worker could be imputed to the Employer. The court adopted the “cat’s paw” theory in holding that even “absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the decision-making process.”

The court noted that the decision “should not be construed as holding an employer liable simply because it acts on information provided by a biased co-worker,” where such action is taken “non-negligently and in good faith.” Moreover, “an employer who negligently relies on a low-level employee’s false accusations in making an employment decision will not be liable under Title VII unless those false accusations themselves were the product of discriminatory or retaliatory intent.” The court seemed to be swayed by the egregious facts in this case – the Employer’s refusal to consider all evidence while conducting its investigation. The Employer had accorded the co-worker an “outsize role” in its own employment decision, which prompted the court to impute the employee’s animus to the Employer under a cat’s paw theory.

The theory of liability here could also be applied in a discrimination case. Employers are obligated to conduct a thorough investigation of an employee’s claims of harassment, discrimination and retaliation. It must take into account the potential biases and motivations of decision-makers and witnesses. Employers should document all aspects of an investigation and keep a clear record showing that all facts and potential motivations were considered when making a decision to discipline or discharge.