A growing trend in employer attempts to evade liability for discrimination is to find a manager with no record of discrimination and use that manager to be the official “decision maker” for firing the employee. Civil rights and whistleblower advocates use the “cat’s paw” theory to argue that the official decision-maker was just a “cat’s paw” for the manager who really wanted the employee fired for an illegal reason.  The U.S. Supreme Court is now poised to decide whether it will consider the validity and requirements for establishing that a decision-maker is a cat’s paw. It invited the Solicitor General to file a brief on the issue. Solicitor General Elena Kagan has now filed that brief and it is an excellent explanation of why we need the cat’s paw theory to prove illegal discrimination. Anyone who needs to prove employer knowledge of protected activity, or that animus by one official is connected to the decision-maker, should study this brief.

NEWS FLASH: On April 19, 2010, the Supreme Court granted Vincent Staub’s petition and agreed to hear his case.


Vincent Staub worked at Proctor Hospital in central Illinois as an angiography technician.  He was also a member of the U.S. Army Reserves. The department’s second in command, Janice Mulally, was openly hostile to Staub for the inconvenience of scheduling technicians around his reserve duties. She assigned him extra shifts to work as “payback … for everyone else having to bend over backwards to cover [his] schedule for the Reserves.” Michael Korenchuk, the department head, was also critical of Staub’s military duty obligations. He called it “a b[u]nch of smoking and joking” and a “waste of taxpayers’ money.” Mulally issued a warning to Staub ordering him to report to a supervisor whenever he left his work station. A few weeks later when Staub was at lunch, Korenchuk reported to the VP of Human Resources, Linda Buck, that Staub was not at his work station. Buck confirmed that the warning was in Staub’s personnel file and fired him. Staub sued under the Uniformed Services Employment and Reemployment Rights Act of 1984 (USERRA), 38 U.S.C. 4301.

USERRA has an enhanced standard for proving retaliation against an employee’s military reserve duties. Similar to the standard used in modern whistleblower laws, USERRA required Staub to prove that his military service was a “motivating factor” in the adverse action. 38 U.S.C. 4311(c)(1). If his succeeded, then the employer would have to convince the jury that it would have fired him anyway even if he had no military status.

The trial court instructed the jury that “[a]nimosity of a co-worker toward the [Staub] on the basis of [Staub’s] military status as a motivating factor may not be attributed to [the employer] unless that co-worker exercised such singular influence over the decision-maker that the coworker was basically the real decision maker.” The court also instructed that “[i]f the decision maker is not wholly dependent on a single source of information but instead conducts its own investigation into the facts * * * , [the employer] is not liable for a non-decision maker’s submission of misinformation or selectively chosen information or failure to provide relevant information to the decision maker.”

The jury found in favor of Staub and awarded $57,640 in damages. The hospital appealed and got the Seventh Circuit to reverse. The court emphasized that liability under the cat’s paw theory requires
“a blind reliance, the stuff of ‘singular influence.’” The Court of Appeals said that since Staub could not prove that Mulally had such “singular influence” over Buck, the judge should never have allowed the jury to hear what Mulally said about Staub’s military service. Without this evidence, the Court of Appeals said the employer had to win. This appellate decision is Staub v. Proctor Hosp., 560 F.3d 647 (7th Cir. 2009).

Staub appealed to the U.S. Supreme Court. Last November, the Court asked the Solicitor General to submit a brief.  This is traditionally an indication that the Court is interested in the case.  Now that the Solicitor General has filed a brief asking the Court to accept the case, that bodes even better for Vincent Staub.

The Solicitor General notes that the Seventh Circuit’s”singular influence” requirement is inconsistent with USERRA’s “motivating factor” requirement. It undermines the enforcement of USERRA,
frustrating the congressional objective of “encourag[ing] noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service.” 38 U.S.C. 4301(a)(2). This argument connects the outcome to the remedial purpose of the law.  This is the type of argument that has been absent from the Solicitor’s office for too long, and is a breath of fresh air to read.

The Solicitor General’s brief also cites the court to ten other appellate decisions that have allowed “cat’s paw” liability to attach whenever the biased manager merely “influenced” the adverse decision. Only the Fourth Circuit has agreed with the Seventh Circuit’s strict requirements. Hopefully, this outstanding brief will influence the Supreme Court to accept Staub’s case and reinstate the jury’s verdict. With this one swipe, the Supreme Court can put asunder this latest employer tactic to evade liability.

Solicitor General’s Amicus Brief of the United States