Publications: 7th Circuit reinstates 'cat's paw' jury verdict

The so-called "cat's paw" theory of liability these days is gaining more prevalence in employment discrimination cases under Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA) and like civil rights statutes. It addresses the situation where an unbiased manager takes an adverse employment action, for example, fires a subordinate, but is influenced in her decision by the illegal bias of a nondecision-making co-worker. The name "cat's paw" comes from a 17th century story in which an evil monkey prevails upon an unwitting feline to remove chestnuts from a fire. When the cat burns one of its paw, the monkey gets the chestnuts. In current employment law vernacular, the "cat's paw" is the unbiased supervisor who is duped into taking the adverse employment action based on someone else's biased motivation.

The U.S. Supreme Court has not yet determined the extent to which and under what circumstances an employer may be liable pursuant to a "cat's paw" theory. It did last year, however, grant certiorari in a "cat's paw" discrimination case originating from the 7th U.S. Circuit Court of Appeals, Staub v. Proctor Hosp., 560 F.3d 647 (7th Cir. 2009), cert. granted 130 S.Ct. 2089 (2010). Staub's pendency did not prevent the 7th Circuit from recently using the "cat's paw" theory to reinstate a jury verdict for a white Chicago Park District (CPD) worker who claimed that a racist, black manager influenced her white supervisors into illegally firing her. Schandelmeier-Bartels v. Chicago Park District, Nos. 09-3286 and 09-3468 (Feb. 8, 2011).

The CPD hired Cathleen Schandelmeier-Bartels in April 2006 as a cultural coordinator for the South Shore Cultural Center. Her job was to supervise the cultural center's after-school program and summer camp. Schandelmeier-Bartels reported directly to center Director Andrea Adams, who reported to Alonzo Williams, who reported to Director of Lakefront Operations Megan McDonald. Mary Ann Rowland served as the human resources manager for the Lakefront region. Adams and Williams are black; Schandelmeier-Bartels, McDonald and Rowland are white.

The evidence suggested that Schandelmeier-Bartels was not a strong performer. While still a probationary employee, she received from Adams several disciplinary memorandums relating to her inability to appropriately complete administrative tasks.

A most critical event in the drama occurred on July 31, 2006. The CPD suspended from summer camp for repeated misbehavior a black child, identified as "J.J." When his aunt came to pick him up, Schandelmeier-Bartels claims that the aunt and J.J. were in another room and Schandelmeier-Bartels heard the sound of flesh being struck and a child screaming. She looked in the room and allegedly witnessed J.J.'s aunt kneeling over J.J. with a belt raised in her hand above her head, while J.J. cried. Schandelmeier-Bartels claims that J.J. had displayed a welt on his arm. Schandelmeier-Bartels instructed the aunt to stop and J.J. and his aunt then vacated the center premises.

Schandelmeier-Bartels immediately reported the incident to Adams. Adams allegedly replied that what Schandelmeier-Bartels had witnessed was a "cultural thing" because "this is the way we discipline children in our culture." Adams further asserted that she had the "unspoken permission" of the parents of the black junior counselors at the camp "to grab them and put them back into line." Adams told Schandelmeier-Bartels that if she truly felt she had observed child abuse, she was obligated legally to report it to the Illinois Department of Children and Family Services (DCFS). Schandelmeier-Bartels that night called DCFS and was advised to call the local police so that they could conduct a "well-child check" on J.J. Schandelmeier-Bartels called the police the following morning.

Just before noon on Aug. 1, 2006, Adams summoned Schandelmeier-Bartels to her office. J.J.'s aunt was there. According to Schandelmeier-Bartels, Adams "went ballistic," stating that the aunt's striking J.J. was a cultural difference that Schandelmeier-Bartels could not understand. Adams supposedly was "violently angry," made other comments of a racial or cultural nature and dismissed Schandelmeier-Bartels from her office with the comment, "I can't stand the sight of you, Cathleen."

Adams that day wrote to McDonald and Williams detailing Schandelmeier-Bartels' multiple workrelated transgressions. In the memorandum, Adams recounted in some detail the "final straw" incident pertaining to J.J., but omitted any reference to her racial tirade that Schandelmeier-Bartels claimed to have witnessed that morning in Adams' office. Rowland then drafted Schandelmeier-Bartels' termination letter, which Williams and Adams delivered to Schandelmeier-Bartels at 6 p.m. on Aug. 1.

Schandelmeier-Bartels thereafter sued the CPD for reverse race discrimination under Title VII. A federal district court jury ruled in her favor and awarded her $200,000 in compensatory damages for anguish, emotional suffering and the like. The CPD requested that the trial court toss the jury verdict or, alternatively, order a new trial. The trial court ruled in the CPD's favor, finding that Adams' demonstrated racial bias did not inform the CPD's ultimate decision to fire Schandelmeier-Bartels. The trial court conditionally denied the CPD's motion for a new trial. Schandelmeier-Bartels appealed to the 7th Circuit.

The 7th Circuit reversed and reinstated the jury's verdict in Schandelmeier-Bartels' favor, applying the "cat's paw" theory. While acknowledging that over time it has applied different standards for imputing "cat's paw" liability to employers and admitting that the Supreme Court's anticipated Staub decision might lend some clarity to the issue, the 7th Circuit nevertheless ruled that the evidence in Schandelmeier-Bartels' trial allowed a reasonable jury to conclude that Adams' influence over the CPD's discharge decision was "singular." In other words, wrote the appellate court, "the jury could reasonably conclude that when the decision was made to fire Schandelmeier-Bartels, only Adams' biased voice mattered." Judgment for Schandelmeier-Bartels accordingly was permissible.

The 7th Circuit reached this conclusion by reviewing several factors, all of which employers and their lawyers should heed. First, it discussed McDonald's role as the supposed decision-maker who fired Schandelmeier-Bartels. It noted that McDonald was three supervisory levels removed from Schandelmeier-Bartels, never personally observed Schandelmeier-Bartels' work and had little contact with Schandelmeier-Bartels overall. While noting that McDonald, Rowland, Adams and Williams met a week before the J.J. incident to discuss Schandelmeier-Bartels' potential dismissal, the court found no convincing evidence that the group or McDonald actually decided to fire Schandelmeier-Bartels before the J.J. incident. And while the CPD at trial tried to demonstrate that McDonald had no knowledge of the J.J. incident when she supposedly made her decision to fire Schandelmeier-Bartels, the 7th Circuit countered that the jury had Adams' July 31 "last straw" memorandum to McDonald that detailed the J.J. incident. According to the court, the jury could conclude, based on the July 31 memorandum and other evidence, that "Adams had decisive influence" over the decision, making McDonald the "cat's paw."

Also central to the 7th Circuit's decision was the lack of an independent investigation by McDonald, human resources manager Rowland or anyone else at CPD. Wrote the court, "The jury could easily conclude … that the only meaningful information McDonald acquired in her 'investigation' came from Adams, the racially biased source."

What does it all mean?

First and foremost, that the "cat's paw" theory is alive and, depending on the Supreme Court's anticipated Staub decision, may see more and more play in employment discrimination jurisprudence. Accordingly, Schandelmeier-Bartels also means that the role of independent investigations, and not just taking a subordinate manager's word for it, will be enhanced.

Although the 7th Circuit reinstated Schandelmeier-Bartels' verdict, it found that the jury had no reasonable basis to award Schandelmeier-Bartels $200,000 for compensatory damages and reduced her award to $30,000.

As we went to press, a unanimous U.S. Supreme Court decided the Staub case, reinstating a reservist's claim under the Uniformed Services Employment and Re-employment Rights Act (USERRA) and holding that under USERRA, an employer may be liable if a biased supervisor's discriminatory intent was a "proximate cause" of the employee's firing, even though the unbiased decision-maker (i.e., the "cat's paw"), made the ultimate firing decision.

Reprinted with the permission of The Law Bulletin Publishing Company.