The Tenth Circuit Court of Appeals ruled last week that an African-American printing technician could not proceed to trial on a “cat’s paw” theory of retaliation. Thomas v. Berry Plastics Corp. (10th Cir. 2015). Under a cat’s paw theory, an employer who acts without discriminatory intent can be liable for a subordinate’s discrimination if the employer simply relies on the subordinate’s reports and recommendations in deciding to take adverse employment action without evaluating them critically.
Karry Thomas worked for Berry Plastics Corp. for seven years, during which eight supervisors disciplined him at least 13 times.
Thomas was eventually discharged. He argued that Jason Morton, an intermediate supervisor, influenced the decision of Printing Manager Watson, who actually made the decision to terminate Thomas. According to Thomas, Morton wanted to retaliate against him for alleging discrimination during a meeting in which he received a final written warning for poor performance.
To succeed on his cat’s paw theory, Thomas had to convince the court that Morton was dishonest in reporting on Thomas’ performance. The court determined that a reasonable jury would not reach such a conclusion and granted summary judgment for Berry Plastics.
Importantly, the court wrote that “simply asking an employee for his or her version of events may defeat the inference that an employment decision was discriminatory, as such an inquiry demonstrates that the employer has taken care not to rely exclusively on the say-so of the biased associate.”
Members should take these words to heart. While there will always be extreme examples when summary termination is appropriate, in most cases, employees should have an opportunity to rebut negative feedback that could lead to adverse employment action. Simply providing this opportunity to employees may insulate employers from liability in some cases.