Can Employers In The Fifth Circuit Be Liable For Retaliation Under Title VII When The Decision Maker Had No Retaliatory Motive?

In Zamora v. City of Houston, 14-20125 (Aug. 19, 2015), the Fifth Circuit joined the Sixth, Eighth, and Tenth Circuits in holding that the "cat's paw" theory of causation can also be utilized in Title VII retaliation cases, which require proof of "but for" causation between the retaliatory sentiment or animus and the adverse employment action.

Case Background: Zamora sued the City for Title VII retaliation after he was suspended for 10 days by the chief of police following an Internal Affairs investigation. Although it was undisputed that the actual decision maker (the chief of police) did not exhibit any retaliatory animus, Zamora nevertheless argued that the "CRU supervisors made retaliatory statements to Internal Affairs, intending to cause Zamora to suffer an adverse employment action, and that they succeeded." The Internal Affairs investigation stemmed from a complaint that the CRU supervisors had violated departmental policies by being untruthful during their depositions related to a pending lawsuit that Zamora had filed. The city argued that even if Zamora's CRU supervisors were motivated by retaliatory animus, their statements during the investigation were not the but-for cause of Zamora's suspension, since the decision to suspend Zamora had been made by a much higher-level decision maker (the chief of police) and was subject to several layers of escalating internal review. The jury disagreed, awarding him $150,000.00 in past and future compensatory damages. The City appealed the denial of its JNOV motion, arguing that Zamora had failed to establish causation as a matter of law.

What is the "cat's paw" theory of causation? Plaintiffs use what is called a "cat's paw" theory of liability, approved for motivating-factor cases in Staub v. Proctor Hospital, 562 U.S. 411 (2011), when they cannot show that the decision maker - the person who took the adverse employment action - harbored any discriminatory animus. In Staub, the United States Supreme Court held that "if a supervisor performs an act motivated by discriminatory 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."

What does the plaintiff typically need to show to establish a Title VII case? A plaintiff asserting a Title VII discrimination claim must show that the employer's discriminatory motive "was a motivating factor" for an adverse employment...