No Cat’s Paw Here – An Independent Review of a Proposed Termination May Be A Good Idea

In a case in which an employee accused the higher-level manager who terminated him of being a “cat’s paw” for his allegedly racist first line supervisor, the manager’s independent review of the circumstances to support his decision wholly undercut the employee’s claim.

“Cat’s paw” is an idiom meaning someone who is used by another to carry out wrongdoing. For those of you who are wondering, it comes from a Jean de La Fontaine fable, “The Monkey and the Cat,” in which the monkey tricks the cat into pulling hot chestnuts from the fire, which the monkey eats, leaving the cat only with burned paws. This principle has been applied in the employment law context to hold employers liable for unlawful discrimination where the unbiased decisionmaker was influenced by another employee with a discriminatory motive.

In Chea v. IHC Health Services, Inc., the employee was accused of various incidents of inappropriate behavior towards his co-workers. He was suspended by his supervisor, and the matter was investigated by his higher-level manager, who ultimately decided to terminate him. He appealed his termination through three levels of internal review. All three reviewers, who did not supervise the employee and were not involved in the termination decision, upheld the termination. The employee then sued, arguing that his supervisor was biased against him and started the chain of events leading to his termination by the manager.

The U.S. Court of Appeals for the Tenth Circuit rejected the employee’s argument. The Tenth Circuit stated, “One way an employer can break the causal chain between the subordinate’s biased behavior and the adverse employment action is for another person or committee higher up in the decision-making process to independently investigate the grounds for dismissal.” And that is what occurred here, where the manager conducted his own investigation, including interviews of witnesses and meeting with the employee himself.

The Tenth Circuit further stated that, “An employer can also break the causal chain through a post-termination, independent review.” That also occurred here, with the three levels of internal review by independent reviewers.

So a suggestion for a best practice, particularly in larger companies, is to have a higher-level manager do an independent investigation before making a termination decision. It may also be useful to set up an internal grievance process to allow for another independent review of the decision.