DiGiorgio v. Bd. of Educ. of the City of Elizabeth, No. A-4616-07T2 (App. Div., April 30, 2010) – The plaintiff, a cancer survivor, was terminated after an investigation concluded he had engaged in sexual harassment and improperly read outgoing mail and opened packages without authorization. The complaints against him originated with an HR staffing assistant. The plaintiff alleged that the staffing assistant was biased against him, that her complaints about him were contrived, and that her conduct should be imputed to the Board of Education to hold it vicariously liable under the “cat’s paw” doctrine. Although not yet adopted in New Jersey, the cat’s paw doctrine has been recognized in federal court to describe a situation through which a biased subordinate, who lacks decision-making power, can impute liability to the company by duping the formal decision-maker in a scheme to trigger a discriminatory employment action.

The Appellate Division rejected the argument, finding that even if the cat’s paw theory were to be adopted, there was no evidence that the staffing assistant fabricated her complaints for an improper motive. The court further observed that the staffing assistant was not a member of “upper management” as alleged by the plaintiff, such that liability could be imposed directly on the Board. She had neither broad supervisory powers over the employees, nor did the Board delegate responsibility to her to execute the employer’s policies.


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