Friday, March 16, 2012

Simians and Feline Appendages

One of the pleasures of living in Chicago (and just for the record, the pleasures generally more than offset the disadvantages of the weather and political culture) is being under aegis of the federal Seventh Circuit Court of Appeals, which regularly issues highly useful and entertaining opinions.

The Court, via one of its most thoughtful members, Judge Richard Posner, recently issued one such useful and entertaining opinion with respect to an employment case out of southern Illinois. The Court’s discussion is noteworthy because it casts lots of light, in a highly readable way, on so called “cat’s paw” discrimination recently discussed by the Supreme Court .

I have discussed the “cat’s paw” model before; here is a quick refresher. The odd moniker arises out of a 17th century fable about a monkey who wants some chestnuts that are roasting in a fire (perhaps this is the genesis of the Christmas carol). The monkey persuades an “intellectually challenged” cat to retrieve the chestnuts from the fire.  In doing so, of course, the cat burns its paw while the monkey gobbles up the chestnuts. Judge Posner commented that this is a fable offensive to cats and cat lovers, although I am not clear how cats would know about it. In any event, a cat’s paw case is one in which a supervisor without any discriminatory animus is motivated to take an adverse employment action against an employee by a subordinate or other person who does have discriminatory animus against the employee.

In this case, there was plenty of confusion surrounding the roles of pretty much everyone. A security company was responsible for providing security for  a shopping mall in southern Illinois. The plaintiff (we can call her a “chestnut”), worked as a security supervisor. She reported to a man (let's call him the monkey) whom she alleged made sexually offensive comments to other women in her presence, and frequently noted that he wanted an all male/monkey staff around him. When the chestnut began telling the monkey that she wasn’t fond of his activities, he began to give her negative evaluations and accused her of stealing and other misconduct in communications to his superiors.

The monkey's supervisor (lets call him the intellectually challenged cat) told the chestnut that he was abolishing her chestnut job at the shopping mall and transferring her to another nearby town. As a result of the transfer, she was also moved out of her chestnut supervisor position . When the chestnut asked the cat if she was being fired, the cat said “no.” When the chestnut returned to work, the monkey saw her in uniform and told her to clean out her locker, and return her office keys. At this point, the chestnut decided that she was being fired and left. The chestnut never accepted the transfer or tried to reclaim her job. She filed a charge of discrimination, and then sued.

As frequently happens in these types of cases, once things got to trial, the jury became completely confused with respect to chestnuts, cats, and monkeys. Chestnut claimed that she was fired because of her gender and in retaliation for her complaints. The company, which was seeking to explain the acts of the monkey and the cat, indicated that the chestnut was not fired. The jury got confused about the roles of monkey and the cat, and although it found that the plaintiff had been fired, determined that there was no liability for the company because it did not believe the monkey was the sole decision maker.

Judge Posner noted that the jury’s confusion, augmented by a bad instruction from the trial judge, required the case be returned to the district court for a new trial. Judge Posner first described the plaintiff’s theory of the case- that the monkey was no one’s cat’s paw, that he was the monkey and that he wanted to get rid of her and did so with his own paws, rather than enlisting some hapless cat to do so. This would be a valid discrimination claim. Judge Posner also wrote that the company could have defended against this claim by showing that the cat made the decision to terminate the Plaintiff, or at least demote her, on his own without having been monkeyed with. Because the company did not produce any evidence of this at all (and instead insisted that it did not fire the plaintiff), there was complete confusion as part of the jury who was liable. Thus, the new trial.

One moral of the story – cats and monkeys are difficult creatures to control in management and litigation. You are better off being able to show nonbestial reasons for your employment decisions.  The more important lesson is that the company should never have allowed the situation with the employee to remain confused--it should have followed up with her to ascertain for certain whether she actually resigned, and why.  Ambiguity almost always favors a plaintiff employee.

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