Second Circuit Adopts “Cat’s Paw” Theory of Imputing Nonsupervisory Employee’s Retaliatory Intent to Employer

In Vasquez v. Empress Ambulance Service, Inc., No. 15-3239-cv (August 29, 2016), the Second Circuit Court of Appeals set new precedent when it held that an employer may be held liable for the retaliatory intent of a nonsupervisory employee under Title VII of the Civil Rights Act of 1964.

The plaintiff, Andrea Vasquez, brought claims under Title VII and the New York State Human Rights Law against her employer, Empress Ambulance Service, Inc., for retaliatory termination for complaining of alleged sexual harassment by her coworker, Tyrell Gray. Vasquez alleged that when Gray learned she had complained of sexual harassment to her supervisor, Gray doctored a text message conversation and nude photos (purportedly of Vasquez), to persuade the company they had been in a consensual relationship. Despite Vasquez’s alleged insistence that Empress view her own text messages to disprove Gray’s contentions, Empress refused. As alleged in Vasquez’s complaint, Empress terminated her employment based solely upon Gray’s assertions to the company without giving any credence to her account of what transpired.

In deciding Empress’s Rule 12(b)(6) motion to dismiss, the district court found that Empress was not liable for the alleged retaliatory intent of Gray as a matter of law because he was a nonsupervisory, low-level employee whose motives could not be imputed to the company. However, the Second Circuit disagreed and held that, under Title VII, the retaliatory intent of a low-level employee may be imputed to the employer if the employer negligently relied upon information provided by that employee in making the employment decision. The Second Circuit based its decision upon the “cat’s paw” theory of liability. As the Second Circuit explained, the “cat’s paw” metaphor was first articulated by Judge Richard Posner in 1990, and it has been used in the employment discrimination context to describe when a supervisory employee, who has no discriminatory motive, subjects an employee to an adverse employment action in reliance upon another employee’s discriminatory intent. Under this theory, where a supervisor acts as the employer’s agent, any “rubber-stamping” of a discriminatory motive may impute that subordinate’s motive to the employer. Prior to Vasquez, the Second Circuit had neither accepted nor rejected the theory.

The Vasquez decision is notable because the Second Circuit has now unequivocally accepted the cat’s paw theory. Moreover, the decision is also significant because the Second Circuit has joined the First Circuit in holding that the cat’s paw theory may be applied to a low-level employee who allegedly harbors a retaliatory intent. The Supreme Court has already established that an employer may be held liable for the discriminatory acts of a supervisor if those acts were based upon the discriminatory intent of a subordinate. Now, the Second Circuit has expanded this theory to allow for a finding of liability against an employer where the employer negligently relied upon the retaliatory intent of a nonsupervisory, low-level employee. This decision serves as a strong reminder that employers in the Second Circuit and their trained human resources professionals should carefully and thoroughly investigate any and all employee complaints of discrimination and/or harassment.