United States Supreme Court Recognizes Cat's Paw Theory Of Liability In Employment Cases

(Published in New Hampshire Bar News, May 2011)

The United States Supreme Court issued its long awaited decision on the "cat's paw" theory of liability on March 1, 2011. The "cat's paw" seeks to hold employers liable for discrimination by employees who played no part in the ultimate employment decision but influenced the decision in some way. The case of Staub v. Proctor Hospital (No. 09-400) represents a significant victory for employees and is also remarkable for the fact that it was a unanimous decision by a court which has until now been sharply divided on employment issues.

Staub was employed as an angiography technician by Proctor Hospital. During his employment he was a member of the United States Army Reserve. Both his immediate supervisor and her supervisor were demonstrably hostile to Staub's military obligations. As a member of the reserves, Staub was required to attend military training one weekend per month and two weeks during each summer. There was evidence during trial, which the jury accepted, that Staub's supervisor showed animosity toward these obligations and that the department head made derogatory remarks about the military.

The evidence was that Staub had been counseled for such issues as poor attitude, lack of professionalism, and ability to work with others. His supervisor gave Staub disciplinary warnings which included a directive requiring him to report to her or her supervisor when his cases were completed and to get permission if he wanted to leave his work area. After receiving a report from the supervisors that Staub had violated the Corrective Action, Proctor's vice president of human resources reviewed Staub's personnel file and made the decision to fire him. Staub claimed that he had not violated the directive and had left a voice message with his supervisor letting her know that he was going to lunch. The VP of Human Resources never followed up to check the veracity of that statement. Staub filed a grievance, claiming that his supervisor had fabricated the allegation underlying the warning out of hostility toward his military obligations, but the VP of Human Resources adhered to her decision.

Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which forbids an employer to deny "employment, reemployment, retention in employment, promotion, or any benefit of employment" based on a person's "membership" in or "obligation to perform service in a uniformed...