Week ending 6/22/12: Lowe v. Medco Health Solution of Willingboro

Lowe v. Medco Health Solution of Willingboro, LLC, Dkt. No. 10-4823 (RMB/AMD)(D.N.J.
June 19, 2012 (Unpublished).

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This opinion is important because of its analysis and application of the “cat’s paw” theory of liability in discrimination and retaliation cases. Lowe, a male security supervisor, alleges that he was terminated in retaliation for complaining about his supervisor’s sexual harassment of women in the workplace. Judge Bumb had previously denied summary judgment on Lowe’s Federal and State race discrimination claims, but reserved on the retaliation issue, inviting supplemental briefs and argument on the “cat’s paw” theory. The Court denied summary judgment on the LAD retaliation.

The cat’s paw theory of liability essentially provides that an employer can be liable for the animus of supervisor who was not charged with making the ultimate employment decision. The term “cat's paw” derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law by Judge Posner in 1990. See Shager v. Upjohn Co., 913 F.2d 398, 405 (CA7). In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing. A coda to the fable (relevant only marginally, if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on the king's behalf and receive no reward. See Staub v. Proctor Hosp., 131 S. Ct. 1186, 1190, fn.1 (2011).

Only two New Jersey State Court unpublished cases have addressed the cat’s paw theory, both with approval. Kwiatkowsky v. Merrill Lynch, 2008 WL 3875417 App. Div. 2008), Certif. Den’d, 197 N.J. 259 (2008); Battaglia v. United Parcel Serv.Inc., 2011 WL 3516925 (App. Div. 2011, Certif. Granted, 209 N.J. 232. It is unknown whether the Supreme Court will give us a definitive answer in Battaglia, but several Federal Courts, including this latest opinion, have predicted that New Jersey will adopt the “lenient” approach of holding an employer liable for the discriminatory conduct of its supervisors irrespective of the knowledge or intent of the ultimate decision-makers.

Plaintiff’s counsel - Olugbenga O. Abiona, Esq.
Defendant’s counsel - John Hames Peirano, Jr., Esq.
Vimal Kumar Shah, Esq.
McElroy Deutsch Mulvaney & Carpenter, LLP
Judge - Ren裠Marie Bumb, U.S.D.J.

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