Investigation Again Key to Avoiding “Cat’s Paw” Liability

​This month, the Tenth Circuit Court of Appeals held that the “Cat’s Paw” theory of liability—where an unsuspecting supervisor is duped into taking an adverse employment action based on the discrimination of another supervisor—applies to age claims under the Age Discrimination in Employment Act (ADEA). Simmons v. Sykes Enterprises, Inc. (10th Cir. 2011). However, the court also held that ADEA requires a claimant to show that age bias was not merely present, but was the factor motivating the adverse employment action.

Sykes Enterprises fired Patricia Simmons, 62, and Sharon Gaddis, her 23-year-old co-worker, after a complaint and workplace investigation concluded that they had both disclosed confidential employee medical information.
Arguing the Cat’s Paw theory, Simmons contended that two of her supervisors—who were allegedly biased against her because of her age—influenced another decision maker to fire her. But in light of the objective investigation Sykes conducted, the court held that even if Ms. Simmons’s supervisors were biased against her because of her age, there was abundant evidence showing she would have nonetheless been fired because of her serious company policy violations.
The importance of a thorough investigation in exonerating employers from frivolous lawsuits cannot be overstated, and the Tenth Circuit has stated this explicitly with respect to the Cat’s Paw theory. EEOC v. BCI Coca-Cola Bottling (10th Cir. 2006).