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|"Cat's paw" liability
cannot be based on
merely "affecting" an ultimate
Crosbie v. Asante (Oregon Ct App
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
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
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
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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