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"Cat's paw" liability cannot be based on
merely "affecting" an ultimate decision

Crosbie v. Asante (Oregon Ct App 10/05/2022)
Sent to Custom Alerts™ subscribers on 10/05/2022

To prevail on a claim of unlawful discrimination or retaliation, an employee must prove that a protected trait or their involvement in a protected activity was a "substantial factor" in the adverse decision. The "cat's paw" theory provides a pathway for satisfying the causation requirement when the decision-maker was not personally biased against the employee but was influenced by another person who was so motivated.

Denese Crosbie, a nurse, claimed she was fired in retaliation for reporting safety issues, including violations committed by the other nurses. The employer's claim was that she was fired for her persistent bullying behavior toward other nursing staff.

Crosbie won a jury verdict, but the Oregon Court of Appeals reversed because of a faulty jury instruction.

The "cat's paw" instruction is appropriate in cases where a biased employee is a coworker if there is evidence that that biased coworker actually influenced or was involved in making the adverse employment decision.

In this case, Crosbie asserted that other nurses were biased and those nurses complained to management about her behavior.

The flaw in the instruction that was given to the jury was that that the jury could find the employer liable if a biased employee (a nurse co-worker) "influenced, affected or was involved in" management's employment decision. The court held that this instruction was too broad.

The court put it this way:

There is no doubt that the potentially biased nurses' complaints "affected" the ultimate employment decision; indeed, their complaints set the process in motion. *** [H]owever, setting a complaint in motion (i.e., "affecting" a decision) is not enough—the biased employee must have been involved in or have influenced the ultimate decision-making process. The alternative would mean that the bias of any employee who provides relevant information to management could be imputed to the employer.

The error was compounded by the fact that the evidence presented at trial uniformly described a decision-making process that was insulated from the nurses' involvement. The nurses' immediate supervisor testified that discussing the investigation and employment decision process with the other nurses "would have been completely wrong." Several nurses similarly testified that they were not consulted beyond their initial complaint.

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