Schorr & Associates’ Employment Case of The Week ending September 2, 2016
Vasquez v. Empress Ambulance Serv., 2016 U.S. App. LEXIS 15889 (2d. Cir., August 29, 2016)
The Second Circuit this week issued the first Federal Appellate decision in which the “cat’s paw” theory of liability for discrimination was applied to the actions of a co-worker rather than a manager.
The plaintiff in this case, Andrea Vasquez, was hired by the defendant, Empress Ambulance Service, Inc., in July 2013 to work as an EMT. A co-worker of Ms. Vasquez, Tyrell Gray, began making unwanted romantic and sexual advances towards Ms. Vasquez and was consistently rebuffed. The final incident occurred in January 2014, when Mr. Gray sexted Ms. Vasquez an unsolicited “dick pic”. Ms. Vasquez immediately reported this action and started writing a formal complaint.
Mr. Gray became aware of this complaint and allegedly determined that the best course of action was to lie his way out of it. First, he asked another coworker to lie for him, which the coworker refused to do. Then, he allegedly falsified text and picture messages on his phone by making it appear that texts and pictures from another woman were actually from Vasquez. He then printed them out and brought them to management. Management refused to look at Ms. Vasquez’s phone or evidence and immediately fired her based on the false evidence submitted by Mr. Gray despite Ms. Vasquez’s repeated protests that the messages were fake and offers to show her phone and what had actually occurred.
Vasquez brought suit under Title VII and the New York State Human Rights Law. The District Court held that the retaliatory animus of Mr. Gray could not be attributed to Empress, and therefore Empress was not liable for the retaliation. Vasquez appealed to the Second Circuit Court of Appeals.
The Second Circuit reversed, holding that employers may be held liable under the “cat’s paw” theory where management neglectfully accepts the accusations of a co-worker who harbors a discriminatory animus toward another employee. The cat’s paw theory of liability essentially provides that an employer can be liable for the animus of a supervisor who was not involved in 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 (7th Cir. 1990). 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).
Here, the Second Circuit held that the cat’s paw theory of liability is not limited to discriminatory supervisors who influence management’s decision, but can even apply to a co-worker. This case is notable not only because it extends liability to the actions of co-workers, but also because it recognizes that employers can be liable not only for intentional discrimination, but also, as here, for negligent discrimination. There has not yet been a New Jersey State case directly on this point, but New Jersey has long recognized that an employer’s negligence in preventing discrimination in the workplace can be a basis for liability. Nevertheless, this is an important Circuit decision which will carry weight in future cases.
Attorney for employee/appellant : Casey Wolnowski, Phillips & Associates;
Attorney for employer/respondent: Debra Lynne Wabnik, Stagg Terenzi, Confusione & Wabnik, LLP;
Circuit Judges: Walker, Calabresi and Hall. (Calabresi wrote the decision);
District Court Judge: Naomi Reice Buchwald.