Ross Runkel’s LawMemo has news of the U.S. Supreme Court granting cert. in a USERRA cat paw case.  You may recall that the Court previously took cert. in another cat’s paw case in 2007 in the Title VII context (BCI Coca-Cola Bottling v. EEOC), but that case was never heard by the Court because it settled.

Here is the 411 from Ross on Staub v. Proctor Hospital (US Supreme Ct cert granted 04/19/2010): 

The issue: “In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?”

Staub sued the employer, alleging that he was discharged in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Staub prevailed after a jury trial. The 7th Circuit reversed. Staub proceeded under the “cat’s paw” theory. Under that theory, the discriminatory animus of a non-decisionmaker is imputed to the decision maker where the former has singular influence over the latter and uses that influence to cause an adverse employment action.
The 7th Circuit held that, prior to admitting evidence of nondecisionmaker animus, a trial court “should determine whether a reasonable jury could find singular influence on the evidence to be presented.” The court reasoned, “[a]llowing the jury to entertain the cat’s paw theory and decide whether there was singular influence, but only upon a prior determination that there is sufficient evidence for such a finding, is consistent with Federal Rule of Evidence 104(b).” The court concluded that the trial court erred in neglecting to make this primary determination, and found that there existed insufficient evidence of singular influence to allow evidence of nondecisionmaker animus to be presented to the jury.

Here is what Ross predicted back in 2007 about the BCI cat’s paw case:

The Court has previously held that the common law of agency is the way to go, and that Title VII’s text dictates this. Both the supervisor and the HR manager were BCI’s agents. It is the racial motivation of employee-agents that determines the racial motivation of BCI.

The supervisor was acting within the scope of his employment (and exercised authority delegated to him by BCI) when he made reports to the HR manager, so his alleged bias is imputed to BCI.

Of course, EEOC has to prove that the supervisor’s action was a cause of Peters’ discharge. The HR manager’s independent investigation arguably broke the chain of causation. However, that’s a question of fact which the Supreme Court will not decide. There is enough of factual dispute for the EEOC to avoid losing on summary judgment, so the Court will rule for EEOC.

I still agree. Although there is a slight change in the Court’s make-up (with Sotomayor replacing Souter), and this case is not on summary judgment but on a jury verdict for plaintiff, I still think the Court will uphold that verdict for plaintiff by a 7-2 margin (Thomas and Alito dissenting).  The jury clearly believed here that the employer was swayed by the unlawful intent of the supervisory employee.