Kagan’s Brief on Cat’s Paw

One of the most important employment law cases which will be decided by the U.S. Supreme Court during its next term is Staub v. Proctor Hospital. It involves a theory of discrimination law known as “cat’s paw.” The Supreme Court has accepted cat’s paw cases previously, because the various U.S. Circuit Courts of Appeals are divided on the meaning and application of this theory.  However, the cases have always been settled or withdrawn before the Court has had a chance to render a decision. The Court has accepted the Staub case but not before Elena Kagan filed a brief in her role as Solicitor General, requesting that the Court do so.

The cat’s paw theory derives its name from a French fable telling the tale of a clever, but unscrupulous, monkey that persuades an unsuspecting cat to grab chestnuts from a fire. The cat suffers burned paws while the monkey eats the chestnuts. As understood today, a cat’s paw is a “tool” or “one used by another to accomplish his purposes.” In discrimination law, if an employee who holds unlawful discriminatory animus against another employee, uses a supervisor who has no discriminatory animus as his cat’s paw to take adverse action against the other employee, can the employee’s discriminatory animus be imputed to the decisionmaking supervisor, thus making the adverse employment action unlawful? 

In Staub v. Proctor Hospital, a member of the U.S. Army Reserves worked for a hospital. One of the employee’s supervisors openly expressed hostilities toward the employee’s reserve duties. When he was eventually fired, he sued the hospital, claiming that his termination violated the Uniformed Services Employment and Reemployment Rights Act (USERRA), the law designed to prevent discrimination against employees who are members of the armed services.

 A jury determined that the hospital had violated USERRA. On appeal, the Seventh Circuit Court of Appeals reversed. When the employee filed an appeal with the U.S. Supreme Court, Kagan argued in her brief that the Court should accept the case, because the Seventh Circuit had incorrectly applied the cat’s paw theory to USERRA and the facts of this case. According to the Seventh Circuit, an employee with discriminatory intent must have used her “singular influence” over the decisionmaker to cause discrimination to occur, even though the decisionmaker had no discriminatory intent.

In Staub, the Seventh Circuit found that while the decisionmaker had considered the ill-intentioned supervisor’s dislike of the employee in making the decision to terminate, the decisionmaker had relied on deficiencies of the employee having nothing to do with his military service. Though the decisionmaker hadn’t conducted a thorough, independent investigation, she had done enough of one to prevent her from being a cat’s paw. The decisionmaker’s action was, therefore, based on non-discriminatory reasons. The jury’s verdict was overturned. 

As noted above, when Kagan filed her brief as Solicitor General, she argued that the Seventh Circuit was wrong, that the “singular influence” standard wasn’t in USERRA, and that the employee should have won. Kagan also wanted the Supreme Court to finally resolve the meaning of the cat’s paw theory, since the U.S. Circuit Courts of Appeal are so divided on the issue. It’s probably fair to say that Kagan’s view of this theory isn’t as strict as employers would like, but it would be going too far to say that her brief in this case shows that she’s anti-employer. There is a reasonable basis for her point of view.

In any event, if she is confirmed to the Supreme Court, she’ll be unable to participate in its decsion on this case in light of her previous involvement as Solicitor General.

For other posts on Kagan, click here, here, here, here, and here.

1. 

   Phil Miles says:

   June 8, 2010 at 9:07 am

   If you’re interested, Kagan’s brief is available on SCOTUSblog: http://www.scotusblog.com/wp-content/uploads/2010/03/Staub-09-400.pdf
2. 

   John Phillips says:

   June 8, 2010 at 8:42 pm

   Phil,

   Thanks very much for your reference to Kagan’s brief. I would have approved this much earlier but have been out of pocket. Thanks again.

   John