Independent Investigation Undermines Employee’s “Cat’s Paw” Discrimination Claim
The U.S. Court of Appeals for the 10th Circuit rejected an employee’s claim that the actual decisionmaker in her termination was a “cat’s paw” (i.e. an unwitting dupe) for the discriminatory intent of others, based on the decisionmaker’s reliance on an independent and thorough investigation that resulted in the employee’s termination.
In Iweha v. State of Kansas, the employee was terminated following an HR investigation that confirmed her coworkers’ complaints that she had violated the employer’s policies. The employee sued, alleging two forms of cat’s paw – that the investigator herself was biased against the employee based on her race and national origin and/or that the investigation was tainted by her coworkers’ discrimination against her – and that the actual decisionmaker uncritically relied on the biased investigation report in making the termination decision.
The Tenth Circuit disagreed. In order to impose cat’s paw liability, the plaintiff must establish an unbroken causal chain between the biased employee’s actions and the unbiased decisionmaker’s “uncritical reliance” on the subordinate’s actions, resulting in an adverse employment action (such as termination). An independent investigation by someone other than the biased employee(s), however, breaks that causal chain. As the Tenth Circuit stated, “If the employer independently verifies the facts and does not rely on the biased source – then there is no cat’s paw liability.” The Tenth Circuit further noted that allowing an employee-plaintiff the opportunity to explain their side of the dispute may be helpful in “bolstering” the independence of the investigation, but such an action is not determinative of independence.
As to the employee’s cat’s paw arguments, the Tenth Circuit first found that the employee offered no evidence to support her contention that the HR investigator was biased against her based on her race or national origin, and therefore this version of the cat’s paw theory failed. The Tenth Circuit then rejected the allegation that the investigator uncritically relied on the biased testimony of the employee’s coworkers, and that the decisionmaker uncritically relied on the investigator’s report. Rather, the Tenth Circuit noted that the investigator not only spoke to the allegedly biased coworkers, but numerous other coworkers and the employee herself. The investigator also reviewed multiple sources of data to confirm the employee’s policy violations. The Tenth Circuit concluded that, “Taken together, [the investigator]’s interviews and documentary factchecking undercut any argument that her investigation and resulting termination recommendation lacked independence and uncritically relied on the discriminatorily biased allegations of [the employee]’s coworkers.”
This case provides a good reminder to employers of the importance of a neutral and thorough investigation into allegations of employee misconduct. Moreover, although not legally determinative here, we suggest that it is best practice to allow an employee the chance to give their side of the story, even where the employer believes there is nothing the employee can say that would change the outcome. There are times when, unexpectedly, the employee provides a convincing explanation. But even if not, if the case ends up in front of a jury, it is our experience that a jury has a strong sense of fair play and will hold it against the employer if they think the employee has not been given due process.
